Amendments Nos. 1 and 2 are related and both may be discussed together.
Freedom of Information (Amendment) Bill 2003 [Seanad]: Committee Stage.
NEW SECTION.
I move amendment No. 1:
In page 5, before section 1, to insert the following new section:
1.-(1) Without prejudice to his or her power to review the Principal Act by virtue of section 36 of the Principal Act, upon the passing of this Act the Commissioner shall undertake a public consultation process in relation to proposals (whether contained in this Act or otherwise) for amendment of the Principal Act.
(2) The consultation process shall include an opportunity for public expression of views by users of the Principal Act including members of consultative groups established by the Minister, members of the media including the National Union of Journalists, business users, members of the Houses of the Oireachtas and members of the legal profession as well as interested non-governmental organisations.
(3) The Commissioner shall examine each and every proposal to amend the Principal Act which is raised in the course of the consultation process and shall prepare and lay before both Houses of the Oireachtas a report thereon, which report shall thereupon stand referred to such joint committee of the Houses as is appointed for the time being with responsibility for matters relating to finance ('the joint committee').
(4) The joint committee shall examine the report and the Commissioner shall on being requested to do so appear before the joint committee and give evidence in relation to his or her report, and the joint committee may report further thereon.
(5) The Commissioner and the joint committee shall take such steps as are necessary to complete their functions under this section not later than 12 months from the passing of this Act.
(6) This Act (other than section 12) shall not come into operation until after the completion of the said review.".
When this Bill was announced in a rush by the Minister approximately three weeks ago, it was an enormous surprise to everyone because we did not know anything about it. It is ironic that we should not know anything about it. The Minister was in fine form at Cheltenham when he spoke to an RTE reporter and camera person. I do not know if he was a bit fed up at being interrupted in the middle of the races, but when asked to explain about the amendment, he said the Government had won the election and the people had decided and he put his foot down on what looked like a nice piece of green turf.
Did the people know when they decided to vote for Fianna Fáil and the Progressive Democrats at the last election that they were voting for this draconian change and for the filleting of the Freedom of Information Act? They did not know. I am not suggesting that when they went to vote at the election freedom of information was the highest item on their agenda over and beyond their economic well being or the state of the country's health services. However, few people outside the ranks of the Cabinet and the highest echelons of the Civil Service were aware that the Freedom of Information Act was not operating properly or that if we had not had such an Act, we might have had a better Government in recent years. The "Bertie Bowl" might have been built because nosy journalists might not have found out what is was likely to cost. The row between the Minister for Health and Children, Deputy Martin, and the Minister for Finance about how money was being spent in the health service would not have been made public, except perhaps at the end when one or both of them might have been hospitalised and we would then have realised something was not right. When the Government toured the country last year calling itself the best Government ever, we were not to know it was in a shambles and terrified of the Freedom of Information Act. Government as we know it cannot continue because of the access by citizens, journalists and politicians to information under the Act.
The Labour Party's amendment seeks to give the Government pause for thought and allow a proper process of consultation to be undertaken. We have no problem with a review of the Act. After all, it was very much a creation of my party. The Minister will know that when the Labour Party entered discussions about going into Government with Fianna Fáil in 1992 it sought freedom of information legislation. Fianna Fáil was rather opposed to it at that time and said it would look at the proposal. The rainbow Government agreed to the passage of such an Act. The Labour Party feels it has ownership of this Act. We feel open government has been good for the country.
It is ironic that under this amending Bill, a senior civil servant may qualify and certify that, for example, information about aeroplanes landing at Shannon may not be divulged because of sensitivities in Irish-American relations. However, an Irish journalist could use the American freedom of information legislation to get exactly the same information. This cuts to the core of the argument about this Act. Why change an Act that has been good for the country and is representative of some of the best things that have happened here in terms of more open democracy? It gives citizens more confidence when they know they can question Government.
This amendment seeks to allow consultation with a broad range of people. It will, for example, seek to consult groups established by the Minister. The freedom of information users group, established by the Minister's Department, consists of academics, members of the NUJ and others that have operated as an information and advisory body. Unfortunately, in the context of the change in the Act, the body has not even been asked to meet as, according to the Department, there was some difficulty in arranging a meeting. We also want journalists and the National Newspapers Association to be invited to formally give their views. All of these parties met this committee to talk about the operation of the Act. I do not think any member of the committee remained unimpressed with the care and expertise with which they delivered their thoughtful contributions.
As a consequence of those contributions, this all-party committee made a report to the Dáil that said more time and consultation was needed and that the Act required amendment. This was the view of members across the political spectrum. In her contribution on Second Stage, Deputy O'Malley seemed to feel the Minister was for turning and would introduce amendments, particularly in relation to evidence given to the committee by Colm O'Gorman from the One in Four group. He spoke about the huge impact of the changes proposed in accessing personal information relating to someone, to accessing personal information containing information about someone. We debated this at great length with various expert representatives. Deputy Conor Lenihan assured us the Minister would rush to accept this amendment. The retention of personal information affects about 100,000 people of which approximately 30,000 were resident in institutions and 40,000 were adopted. It also includes people subject to fostering and other care arrangements in more recent years and the parents of children who died and whose organs were retained. This information is held in the files of institutions and Departments. We heard from the Information Commissioner, Mr. O'Gorman from One in Four and parties like The Wheel, representing voluntary and community organisations and the committee agreed that the Bill was wrong, needed substantial amendment and required time for further consultation.
I know today is April Fools Day but this has gone past a joke. The original legislation was good and worked well, except for the paranoia of the Government, that was perhaps shocked and awed that it was re-elected so easily. I do not know what caused the Government to seek the review of the Freedom of Information Act on 25 June 2002, barely two weeks after it was appointed.
A high level review group was appointed and we have obtained some of its detailed working papers under the Freedom of Information Act. Interestingly, the group met for two breakfast meetings, the first of which was shortly after the Government commissioned the group and the second was in late August or early September. The group had a third meeting to wrap up the review of the Act. While I do not know how long breakfast meetings take, it seems the group met for about four and a half hours. In its presentation to this committee, these eminent public servants made it clear that they would not take the rap for filleting the Government's Freedom of Information Act. To paraphrase them, they were making an input as people with a particular concern and knowledge of the workings of the Act. While this is fair enough, their experience and knowledge is on one side of the Act. They are public servants and are cautious by nature. Being employed in the public service, initially their working environment would not have had an atmosphere of openness and transparency. All of them have learned to live with openness and transparency and when they gave their information to the committee, none could give a single example of an important or even minor Government decision that was abandoned, prevented, significantly delayed or incurred significant financial cost to the State as a consequence of the working of the Freedom of Information Act.
What information did we receive last year under the Freedom of Information Act? There was continuing information about the Abbottstown proposal and its cost. Now that the cost and scale of the proposal is apparent, there is not a sports fan in Ireland that would say it was the right thing to do. We got information about the dispute between the Ministers for Finance and Health and Children over what was happening to the health services and why money was apparently going into a black hole without showing better services for patients. The Minister could not say this was damaging to any public debate or discourse. Although it may have been difficult for the Minister for Health and Children, it is helpful to our democracy that we get some information about where and why things are going wrong. We also get information through the Freedom of Information Act on the cost of the operation of the special savings investment accounts. That is an important matter of public discussion. The Minister created a special scheme for which the cost to the State is high. We should know the cost to the State.
We have received information from the Department of Finance on finance questions. The Minister gets approximately three minutes to respond and the Opposition spokespeople get anything from three to five minutes on each question. It is possible under the Freedom of Information Act to ask for the briefing papers which were given to the Minister, particularly if it is a detailed question. However, we will not get those papers in the future. I do not know from what the Minister is protecting himself and his Government by denying us those papers because they are useful not only to the Opposition but also to the Minister.
We have asked for a consultation process involving the Freedom of Information Commissioner and that when the consultation process is finished, the joint committee should examine the report and the commissioner and the joint committee should take whatever steps are necessary to complete their functions under this section. We are asking for a delay of 12 months and that the new Act should not come into operation until completion of the said review.
In framing this proposal the Labour Party sought to be positive and helpful because we regard the Freedom of Information Act as one of the monuments to the Labour Party's participation in Government. It heralded, however difficult, a new era of openness, transparency and accountability. I know many of us found it difficult from time to time to read the details of our salaries. Perhaps the Tánaiste was upset to see that €1,000 worth of expensive chocolates were on the Government jet. However, all these issues are trivial and we have got used to them. We accept the information is available. The core function of the Act is to shed light on the operation of Government and to allow the citizens, the media, expert groups, community groups and organisations to make informed decisions and representations to Government about why certain acts of Government are right or wrong. The amendment offers a way out.
It is difficult to read the comments the Minister made in the Dáil during the debate on Second Stage. He said he did not give "a fiddlers" about the opposition to the Bill. It was almost as if it was not his responsibility and that it was foisted on him by other members of the Government because it was essential to the operation of the Government. He was taking the attitude that if he had to do it, he would do it. We know the Minister is honest. He has never been associated with refusing to divulge information. He has always been open and above board about his views and about the background to decisions he makes. Why is he being forced to carry this shabby legislation through the Dáil? What are the Taoiseach, the Tánaiste and other members of the Government seeking to protect over the past five years? Is it the case that during these periods of substantial prosperity certain things were not done? We have a nation-wide protest today by children, parents and teachers about the shabby state of our schools. Is the Government afraid of such information becoming available when it unexpectedly got a second term in office? The Minister should think again.
The principle of our Freedom of Information Act has travelled the world. Scotland recently introduced a Freedom of Information Act. It was a proud moment for all Irish legislators when the Scottish Parliament adopted our Freedom of Information Act as the model for the Scottish Act. Members of the Oireachtas and of different public bodies, including the Freedom of Information Commissioner, have travelled to many countries in eastern Europe to talk about our Freedom of Information Act. The United States has had a Freedom of Information Act for 40 years. Even now in a time of war - a war with which I profoundly disagree - it will still be possible for the media in the United States to get information which, when the Minister is finished with this Bill, will be barred to us. Sweden also has a Freedom of Information Act which has existed for almost 150 years.
We were told by Fianna Fáil speakers that vexatious requests were made. The example was repeatedly given of one man who made a couple of hundred requests. The Freedom of Information Commissioner told us that if the Departments concerned had told him it was a vexatious request, he could have dealt with it almost immediately.
We are asking the Minister for a year of proper consultation with all the interested parties. In view of his general willingness to be forthcoming and to shoot from the hip, we want him to think again. The Labour Party amendment would allow all of us in the Dáil and Seanad the breathing space of one year.
It is important to buy time here. I am a realist and I know the Government has the numbers to vote through every section of the Bill if it wishes. However, it is important that we at least salvage the right of access for people who have been damaged by the State. This committee has heard evidence that people who have been damaged while in the care of State institutions believe and have offered evidence to this committee, which so far has not been controverted, that their right to obtain evidence about how they were treated in such institutions is undermined in this Bill. We must think twice before we ram through such a change on the basis of a Government guaranteed majority. We have heard that the inclusion of a specific reference to a personal record will undermine their right, as well as the blanket cover being given to tribunals that all records before tribunals will not be discoverable by a parent, for example, who wants to see the records relating to his or her child's case. There are serious issues relating to personal right of access. We must buy time to fully tease out those issues. The State does not seem to have any legal evidence to controvert what we heard at this committee. I will not stand over a process which undermines the rights of people in such a vulnerable position.
We are dealing with newly defined political rights in a post-tribunal Ireland. We have recognised in the Bill the modern rights and obligations of citizenship. The committee must not take the view that just because there is a majority to vote through changes, we should accept those changes. As a body of elected people, we cannot afford to allow important pillars of the new citizens' rights to be undermined in the legislation. That is why I put forward a proposal for more time. I do not want to stop the passage of this legislation. That is probably unrealistic at this stage, but I want to allow an examination of some of the aspects and to allow the Minister to bring into force certain aspects of the Bill which have been reviewed and dealt with by the commissioner. It is clear the commissioner supports the protection of Cabinet papers. There is not any question, therefore, that this would prevent Ministers from protecting such papers.
The other aspect we must bear in mind is that the Minister is trying to rebalance the terms of access to information between Ministers and the media. We must think about that. We know Ministers have an army of advisers who can leak any information they wish under other legislation. We are making decisions to erode the balancing obligation Ministers have under the Freedom of Information Act. This is an attempt to change the relationship between Ministers and the media which, under the Freedom of Information Act, has been more healthy than before. The Minister recognised that in his Second Stage contribution. We should be careful not to lose an important aspect of citizen accountability in this change.
The Minister has gone far beyond the recommendations of the high level group which presented a report on which we had hearings. It is clear that not only did the high level group regard itself as only one contributor to a debate about changing the legislation, but it believed the exemption from access for ministerial communications and for the new advisory committees should only be used sparingly and in the appropriate context. Any cursory examination of the Bill as drafted would show that those two restrictions have not been used either sparingly or only in the appropriate context. Although I question the high level group, we must give ourselves space to push the Government back to the baseline established by the group.
There is no doubt the numbers are here to vote this measure through. However, the committee must ask if that is the right thing to do. When Ministers are appointed, they have a solemn responsibility to do a number of things. One of them is to uphold Cabinet collective responsibility and another is to submit properly prepared memoranda to Government on decisions the Government will take which are of importance to the people. The public must not lose its right to information to stiffen the spine of weak-kneed Ministers who are unwilling to face up to the solemn responsibilities placed on them by the Constitution. For all the criticisms which might be laid at the Minister's door, he is not unwilling to take responsibility and be fully accountable for the decisions he makes. I cannot understand why he wants to pass a charter for Ministers who do not deserve their position in Cabinet. If Ministers are worried about the adverse publicity they might get in five years' time about memoranda which are released, they do not deserve the protection the Minister is seeking to give them today. The committee should adopt that view.
As Deputy Burton said, we should seek to impose stalling mechanisms in relation to the implementation of this Bill. I would be happy if the Minister wanted to implement certain sections now, but agreed to wait for the review by the Freedom of Information Commissioner before implementing other sections, particularly his amendments to section 4 which deal with personal rights. I do not know if the Minister will agree to that concession. I hope he will consider that because we have a duty to protect vulnerable people who have suffered at the hands of the State.
This is the appropriate time for the Minister and the Government to be magnanimous. The Bill potentially removes the right of access and the right to information, which are critical rights that were only legislated for in early 1997. The Bill is a retrograde step which cuts off the rights and entitlements which were affirmed just over five and a half years ago. I am totally opposed to the Bill and what it proposes to do. It should not have seen the light of day. The Government used its majority in both Houses to press ahead with legislation which many of its members already realise is retrograde and an erosion of the rights of the individual citizen. This is not about open and accountable Government. It is the antithesis of that. There has not been a process of consultation, a proper review or public debate. There has only been reactive debate to what has been proposed over the period of time the Government has pressed ahead with it. If amendments are required or aspects of the existing legislation need to be addressed, that is not facilitated in this amending Bill.
I was unavoidably absent from the joint committee session on 19 March but I support the seven line statement prepared on the committee's report which was issued as a result. Its brevity indicates that it was put together by the collective opposition and supported by colleagues here. I fully support the view that additional time is required.
I am disappointed at the time the Minister has afforded us to view his amendments. We only received those amendments yesterday evening. That is one of the worst examples of bad practice. We are dealing with legislation, yet we only received these amendments on the eve of this important Committee Stage debate on the Bill. That is not the way to prepare for this meeting. It is not the way to legislate, particularly when it affects the rights of the individual citizen.
Many of the points I wanted to make have already been covered. The Freedom of Information Act was an empowerment of the individual. While the media access through it is better known and has generated great publicity, which is important and welcome, more than 60% of the requests came from individual citizens. That is important and it must be repeatedly affirmed. This so-called amending Bill curtails their rights. Different groups which articulate on behalf of those who are less able to do so, people who have been victims or are survivors and those who have campaigned for justice in a variety of different ways have been facilitated and given hope and encouragement that justice will be the reward for their efforts. They are all voicing their concerns about the passage of the Bill which restricts access and curtails their opportunity to receive critical information which can afford them justice in their search. Government must take on board those appeals. It is extremely worrying that people who are greatly distressed will be the first victims of this Bill if it is enacted.
The Government has told us that the Freedom of Information Act, as it currently stands, is in some way restrictive to the practice of good government. It has been suggested that it affects the smooth running of government. There have been claims about how it might affect the ongoing peace process. I have repeatedly shown that this is not the case and the claims from the Taoiseach, the Minister for Finance and others were erroneous as existing legislation already caters to any such situation that may arise. There is also adequate coverage in the Act to deal with nuisance and vexatious requests. I challenge the Minister to give one example of how the Freedom of Information Act 1997 has affected the smooth flow of government. Nobody has given solid evidence to support or sustain this claim, yet it is trundled out time and again.
What we are doing here demeans politics in the eyes of citizens. Once the Freedom of Information Act was passed, anything that draws it back is a retrograde step. Any review of the Act should be about enhancing, opening or widening it. In this amending Bill, we are looking at the curtailment of access and opportunity. Citizens see this as politicians looking after their own interests. This is their perception and I fear it will prove to be the case.
The Bill guts the 1997 Act. This opens up the potential for a series of legal actions and litigation. People will seek redress by other means in order to pursue their rights of access to critical information that affects not only their existing daily conditions but seeks to address injustices visited on them in the past. Far from freeing up Government, as the Minister and his colleagues claim, this Bill will tie up the Government in litigation in the future. This is an objectionable step and a backward step for democracy. While I support the appeals for deferral already made by two Deputies, this Bill should be withdrawn.
In the first session of the 29th Dáil, 12 Bills were enacted and this was a poor return for seven months of work. Most of the Bills were of a technical nature and the one substantial Bill introduced sought to retreat from a provision of a previous Bill, the Planning and Development Bill. It says something about the workings of the Government that its inclination is far from radical reform and seeks to form existing legislation in its own image. That does not suit the country, nor does it suit the furtherance of democratic behaviour here.
The genesis of this Bill speaks volumes about where the Government stands. The Bill was not mentioned in any party manifesto in the last general election. Neither was it mentioned in the programme for Government, nor in the legislative programme that was introduced for the first session. The first time we got to hear of the introduction of this Bill, and the reasons for its introduction, was in the legislative programme published in January. With a legislative programme containing many Bills of greater importance that have yet to be discussed, passed and enacted, it is worrying that priority has been given to this type of legislation.
In responding to the Second Stage debate, the Minister was stung by a criticism I made saying there is nothing in this Bill that further enhances the rights of citizens to access information through freedom of information legislation. In responding to the criticism the Minister listed three areas where he felt the Bill did precisely that. He spoke about the inclusion of a right to appeal to the Supreme Court. Given the cost of such an action, I see this as a disincentive. He spoke about the ability of the Information Commissioner to accept late applications for information. That is not an additional right, rather it is an act of administrative licence. He also spoke of the only positive measure in the Bill, namely the rights of parents of minor and incapacitated adults to amend and seek information relating to such people. This is a specific right of a specific category of people. There is nothing in the Bill that further enhances the rights of citizenry in general to access information in a greater way. On all these grounds, the Government stands indicted of not wishing to see a climate of freedom of information here.
As has already been mentioned, the 1997 Act is something in which the Oireachtas can take a great deal of pride. It was genuinely reforming legislation and has been accepted and adopted elsewhere. I do not believe the changes the Government seeks to make to the Bill will be adopted elsewhere. It was the spirit of the original legislation that appealed to legislators in other countries and we are letting ourselves down by embarking on this course.
The need for a review and further consideration before enactment is self-evident. This must be put in place to act as an antidote to the process we have embarked on in having this Bill steamrolled through the House. The bona fides of the Government would be better accepted if we were allowed such a space to examine the positive aspects of this Bill. We heard from the high level civil servant group in our recent hearings. This group was hand-picked and given a particular frame of reference. It made recommendations that were superseded by the type of changes this Bill suggests. As legislators, we have a right to know why such changes were being proposed and the type of consideration that needs to be given to them.
Where do we go from here without the consideration suggested by the amendments tabled by Deputies Richard Bruton and Burton? We will introduce flawed legislation where the reason for this will be known only to the Minister and those around him.
Why has the Bill received such a high priority? The decision to form the high level Civil Service group appears to have been made at the second or third Cabinet meeting following the formation of the Government. It is clear it is seeking changes to the Act as a matter of priority.
Arguments have been made regarding administrative convenience, but no arguments have been made by the Minister or other Government representatives concerning the political imperatives placed on this legislation. I hope the Minister will provide the political rationale as to why he considers the 1997 Act is ineffective and can be made more effective by his proposed amendments.
The Minister has given no indication that those who disagree with his proposals have valid arguments which are worth accepting. I am disappointed with his proposed amendments. In view of this, I support these amendments and I am hopeful rather than confident they will be accepted in the spirit in which they have been proposed.
I will not accept these amendments, which replicate the thrust of the recent Private Members' Bill sponsored by the Labour Party. They imply that the Government's proposals emerged from a vacuum. The Bill is informed by a wide range of views and experience. We are fortunate in Ireland to have a comprehensive system for supporting the implementation of FOI and for involving the various stakeholders and users of the legislation in ongoing dialogue on its operation. Well before the Act came into force, my Department's FOI central policy unit chaired an interdepartmental working group and a public service users' network, with representatives from all sectors of the civil and public service covered by the legislation. Below these two groups, networks such as those in Departments and offices, local authorities, health boards and universities meet regularly to consider issues of common concern and to share learning and experience.
All of these groups and the other arrangements underpinning FOI have served to ensure that the Act has been kept under continuous review since it came into force in 1998. A considerable amount of experience has been built within public bodies. The views of practitioners in the wider FOI community, such as academics, journalists and frequent users of the legislation, have also been availed of on an ongoing basis through the print and other media and various conferences hosted and attended by the central policy unit. For example, the FOI annual conference hosted by my Department last October included presentations from the Information Commissioner, the media and members of academia.
The Bill is based on this experience. It has been prepared on foot of the Government's consideration of the high level group report, which considered various sources, including the annual reports of the Information Commissioner and his report in July 2001 on compliance by public bodies, the Civil Service user's network report in 1999 and the views of the FOI central policy unit of the Department, which monitors the implementation of the Act on an ongoing basis. These aspects were subject to considerable debate in the Seanad and on Second Stage in the Dáil, where I explained that the Government will not go back on the provisions of the Bill. The amendments are essential to allow effective Government to take place.
Deputy Richard Bruton raised a number of points regarding personal information and I signalled my willingness to consider proposals on this Stage. The purpose of the change is to clarify a very unclear situation which arose as a result of a High Court decision. I have provided copies of the decision to the Seanad to see if it can make better sense of it than my Department and its legal advisers. In a radio interview, Mr. O'Gorman said it was not possible to get relevant information as various organisations have given different interpretations of what is permissible in the light of the High Court decision. On Second Stage, I signalled that I would be willing to consider proposals which will clarify the current position.
I welcome the Minister's willingness to consider the proposal that access to personnel records should be confined only to those that contain a specific reference to the individual seeking the record. His Department circulated the High Court decision. However, on any interpretation, the Minister's proposal will restrict the right of access. It would be better to leave the matter unchanged. I look forward to the debate when we reach the relevant section.
I take issue with the Minister's view that he has engaged in adequate consultation. He referred to the public service users' council. Its members release information and are not users of the service in terms of seeking information, such as those in the media. The Minster consulted this group on a regular basis and established a high level group to consider a change that is politically motivated, namely to block the release of records due for release on 21 April. It is a distortion of the truth to regard that as a consultative mechanism.
The Act gives the Information Commissioner a statutory right to review the operation of the legislation. Far from requesting that such a review be undertaken and that it be an element in the consideration by the Government of changes to the Act, the Minister and his officials have studiously ignored the Information Commissioner, have forced him to make his views public and have allowed him to be exposed to an outrageous assault by the Minister for Justice, Equality and Law Reform, who attacked him for doing his duties to the Oireachtas. The Oireachtas, not the Government, appointed the Information Commissioner. The Minister for Justice, Equality and Law Reform is a senior Minister with a legal background and it was seriously mistaken of him to treat an office of the Oireachtas in that way. However, it arose because of the poor manner in which the Minister and his Department approached the question of consultation.
I am not assured by the Minister's statement that conferences have been held which have provided an academic input. I have yet to see any academic who has publicly defended any of the proposed changes. If the Department listened to the views expressed at these conferences they did not consider them when drafting the legislation.
The Minister said he will not change his views on the amendments he proposes and he has indicated he does not care that he did not consult. However, he is accountable to this House and it is not satisfactory that we are asked to pass legislation that has not gone through the normal deliberative process. Citizens have the right to express their views and the relevant experts have the right to be consulted. There is also a legal obligation on the Minister to give the Information Commissioner the opportunity to be consulted. The commissioner should not have felt obliged to express his views in public. The Minister has not fulfilled his stewardship of properly preparing this legislation for submission to the House. It is a gross failing of his responsibility.
The Government is now using its numbers in the House to force through a measure that not one of us, if we are honest, considers to have had the proper prior assessment. Even the Minister's strongest advocates on his side of the House are not happy with the way this legislation has developed. They have been forced to shift their ground and are unsure from where the next issue they may have to defend will arise. The Government has seriously blundered for the wrong motives. I do not accept the Minister's explanation for his unwillingness to accept these amendments.
In the course of the consultation by the committee, two members of the Department's advisory group - Dr. Maeve McDonagh and Mr. Ronan Brady - appeared before it at some length. Dr. McDonagh, professor of law at UCC, is an acknowledged international expert on freedom of information and has had articles published in a number of national newspapers in the course of the debate on the Bill. If I recall correctly, Mr. Brady is an officer of the National Union of Journalists. Both Mr. Brady and Dr. McDonagh are members of the Department's advisory group and both advised the committee that the group has not been consulted about the Bill and that it had not met for almost two years.
Following publication of the Bill, Mr. Brady made strenuous efforts to speak with officials in the Department with a view to the advisory group holding a meeting. The official in the Department handling his request - I do not know if a junior was involved - appeared to be unable to agree a timetable for a meeting. This is particularly unfair to the NUJ. The secretary, who also appeared before the committee, was at pains to point out that when the Bill was introduced, the NUJ was involved in training seminars and sessions for civil servants who will operate the Act.
Those appearing before the committee made the point that FOI decision makers in different Departments and institutions have received a great deal of training. We are within the first five years of the operation of the Act. The NUJ and other interested public bodies co-operated intensively with the Department of Finance, especially in the early stages, to ensure that the Act operated well and that it was not too onerous on civil servants. I can verify this, having made at least 20 FOI requests. The FOI decision maker would make contact, pointing out the implications of a request and inquire if the requester could wait longer and would be prepared to amend the record. Almost everybody who has used the Act will confirm that this interchange between the FOI decision maker in the office, institution or Department and the requester was very useful and educational in a situation where none of us had operated the Act before.
It is disingenuous in the extreme for the Minister to claim that the routine conferences held by various Civil Service bodies and those attended by the Information Commissioner somehow constituted a review of the Act. Everybody knew there was a provision in the Act for a review at the end of five years. Many people, within and outside the public service, have put a great deal of time and effort to ensuring that it worked well. The Information Commissioner has produced a series of serious reports, which, in particular, encouraged the public service to deal with the odd issue of vexatious requests. He told the committee that the Department which dealt with the person who made 255 requests, referred to on a daily basis by a Fianna Fáil Deputy, had a mechanism to seek his advice if the person was being vexatious.
There was no consultation on the Bill. Breakfast meetings took place, one before the summer and one afterwards involving this coterie of high level civil servants. Presumably there was also a meeting of key members of the Cabinet. It was decided to put a lock on the Act and close it down. For the Minster to suggest there was any kind of consultation is a disgrace.
During the last hour of the sittings of the committee which considered the implications of the Bill, I received a letter from the Adopted Peoples Association. It states:
The Adopted Peoples Association is the representative organisation for Irish people who have been adopted. We represent over 40,000 people who have been legally adopted since the introduction of the Adoption Act 1952, as well as an unknown number of people subject to a legal de facto adoption and over 2,000 Irish born people who were adopted abroad, mainly sent to the United States in the early 1950s.
We provide various services to adopted people and natural parents, including the Irish Adoption Contact Register, and are in receipt of funding from the Department of Health and Children. The APA would like to add its voice to those who reject any form of tampering with the Freedom of Information Act. We have used it extensively and it has given us many insights into the Government's thinking on proposed legislation as well as practice and procedure in implementing change. In particular, we reject any amendments that will make it harder, or indeed impossible, for a person to access personal records using FOI.
This organisation represents more than 40,000 adopted people, plus their adoptive and birth parents and their adopted and natural siblings who all have an interest in this legislation. The Minister is saying they do not have the right to be further consulted. If he engaged in consultation why was the Adopted Peoples Association not told that many changes were proposed to the 1997 Act? He can offer no evidence of consultations, other than the breakfast meetings - the orange juice meetings - of the high level committee. A long breakfast takes one and a half hours while many breakfasts last only 30 minutes. Senator Quinn takes his breakfast while standing in Superquinn. The group could have met for a half an hour or four hours.
The Minister's answer is regrettable. He is well able to speak out in defence of his policies and he does not hide behind a veil of secrecy. For that reason I would have expected better of him.
In his response, the Minister perhaps intended to address only the two amendments. He did not respond to many of the salient points made by Deputies in the opening discussion on this Stage. I ask him to cite even one instance of how the 1997 Act has affected the smooth running of government. This has never been outlined by the Government.
No one on the Government benches has outlined the genesis of this Bill. All kinds of spurious claims have been made and answered, yet the Minister has failed to give any inkling of the raison d'être behind the Bill. That is regrettable.
It is not often that Irish legislation is taken as a template by legislators in other jurisdictions. It is a tribute to the 1997 Act that this has been the case. That, again, should surely have cautioned the Government about interfering with what was viewed by others as a best practice approach. We are falling back to the traditional norm of bad practice and bad government.
The Irish Council for Civil Liberties has repeatedly stated that this is a retrograde step and that there was no consultation. We cannot make an accusation of responsibility with regard to the high level group of civil servants. As higher civil servants they would be guided by traditional norms of responsibility and status within the overall Civil Service and by their respective Ministers.
It is disingenuous for the Minister to suggest that any of this constituted a consultation process. There has been no consultation. Those that matter have not been consulted. We are being bounced with this legislation. The Minister is requesting the Dáil to rubber stamp a measure that is contrary to the interests of individual citizens. By that I mean not only those who have, or who are contemplating the FOI process as a means of access to information, but that the right of every citizen is being interfered with. Some will lose because of their particular focus or interest. That is shameful on the part of the Minister, the Taoiseach and their Cabinet colleagues.
Will the Minister define what he means by consultation? I suspect what the Government often means by it is the ventilation of views. Consultation is an ongoing process involving listening, responding and, where necessary, amending. It is hard to see where this has happened in any of the process involving the formation of this Bill.
Like Deputy Burton, I am offended by the use of the reference to the users' group. Will the Minister confirm the status of the group and indicate the nature of its ongoing meetings schedule? I am at a loss to know whether its last meeting was March 2001 or March 2000. It was indicated that the group last met two or three yeas ago. The committee heard submissions from individuals and members of the group who felt they had not been consulted within terms of the ongoing development of freedom of information legislation.
For the Minister to assert that there has been even a degree of consultation on this legislation when it was only first published three or four weeks ago compresses the idea of a consultation process into a narrow time frame. There has been a consequent failure to explain the need for this legislation and why it is being rushed through. The Minister is further denying the right of any effective consultation process. On those terms his reasons for rejecting these amendments are unacceptable. He must explain himself better when countering the arguments made by Deputy Bruton and Deputy Burton.
Deputy Burton should steer clear of orange juice breakfasts. Her former party leader was tripped up with the revelation of his post-budget dinners at £100 per plate. Much has been said about the Swedish system and how open it is regarding freedom of information. However, under the Swedish system, no memorandum of any detail is submitted to the Government, which makes decision making independent of that process.
That is untrue, despite repeated assertions to the contrary by Fianna Fáil.
It is true. I did not interrupt the Deputy and perhaps she might give me the courtesy of not——
The Swedish system of government is different to ours. Memoranda are presented to the Government, but not in the same way as under our system.
The factual position is that under the Swedish system, no memoranda of any detail are submitted to Ministers, nor are minutes kept of Cabinet discussions. Records not created cannot be accessed subsequently. The Swedish system of government should not be portrayed as one we should emulate.
I understand the Information Commissioner made a submission on 5 February. He made a public submission for other reasons at a later stage, as he was entitled to do. However, he made a submission prior to the publication of the legislation.
Perhaps the Chairman will clarify the evidence submitted because Deputy Finneran is giving a slanted view of what it contained.
I do not intend to give a slanted view of anything.
On a point of clarification, I understand the Swedish system——
I am concerned with the opportunity granted to the Information Commissioner to make an earlier submission. I understood he heard of the legislation on the grapevine——
He submitted his amendments to the Department.
——and was given no opportunity to comment on it.
I understand that to be incorrect. If I recall correctly, the commissioner said he made contact and was told to submit his amendments or observations as soon as possible.
Not on the legislation as published.
This debate is centred on the contention that there was no prior consultation. The consultation process following publication of the Bill is ongoing.
The Deputy is seeking to give the view that the commissioner was consulted when he was not.
Prior to the parliamentary consultation process, which is ongoing, and before the publication of the legislation, the commissioner was given and availed of the opportunity to make observations. I am open to correction on that point.
The commissioner had no sight of the legislation at the time. Deputy Finneran should not give the impression that he had sight of the legislation before it was published.
I want to present the facts. If they are wrong we can consult the record of the committee's proceedings to ascertain what the commissioner said.
The commissioner said he had not been consulted. He went on to say that when he learned that a Bill was about to be published, his director general wrote to the Department to ask if it was going to consult with his office because it had technical amendments to suggest. The Department sent a letter to the office asking that it should submit its technical amendments. The commissioner's report contains a number of such amendments, some of which are not contentious They deal with house keeping matters. The commissioner confirmed this position to Deputy Bruton and me. As I recall, Deputy Finneran questioned the commissioner. He was anxious to ascertain if the commissioner was personally aggrieved that he had not been consulted.
That is a different issue.
It is not. It is concerned with the legislation.
We are concerned to ascertain if the commissioner was asked for his views and, if so, did he give them.
He was not and the Deputy asked him——
I do not have the document in front of me. I recall what he said.
I quoted him.
He was told to submit his observations as soon as possible.
In fairness, Mr. Murphy is a distinguished public servant who has given——
I was in possession, Chairman.
Deputy Finneran is in possession.
Mr. Murphy has given distinguished service. His words have been changed.
I will allow Deputy Burton to respond after Deputy Finneran has concluded.
What I say does not suit Deputy Bruton but I am still entitled to say it.
It is not a question of suiting me. It is a question of getting the record of it.
Deputy Finneran is in possession.
Yes, but the committee should not have to hear an inaccurate representation of what the commissioner said.
The Deputy can respond shortly. Deputy Finneran is in possession.
The Swedish system was held up as an example to be admired but it is restrictive.
According to whom?
It is restrictive on the basis that no memoranda or minutes are kept of cabinet discussions. That is an important point.
We were calling the Swedish ambassador.
The exemption period under common law in many countries is 20 years rather than ten. Consultation took place involving those who have an insight into what happens at Cabinet. A high powered committee discussed the matter and made recommendations in a report to Government. Is it not appropriate that the legislation should be reviewed anyway after five years? What responsibility was there on the Government to consult at all? The establishment of a high level Civil Service committee demonstrated the Government wanted technical advice.
There is no attempt to interfere with an individual's right to access personal information under the legislation. However, it has been portrayed as an attack on the individual's access to such information. That is not the position.
Mr. Murphy is a public servant who has given excellent service to the State during his time in the Department of Finance and other Departments and, in latter years, in the independent Office of the Information Commissioner. During his meeting with the committee, Mr. Murphy, in reply to Deputy Finneran, stated, "To be clear, I read about the legislation in the media."
Those were not the words used.
It is sad that Mr. Murphy had to announce his retirement in the context of the total lack of consultation——
That is also incorrect. He said he made a decision on that matter well in advance of the publication of the legislation.
He read about the legislation in the media. His discussion with the committee extends over 20 pages.
The Minister has made no attempt in the amendments he tabled to insert the serious amendments put forward by the Information Commissioner. With regard to personal information, the Information Commissioner and Mr. Fergal Bowers of the NUJ both pointed out to the committee three or four instances where they felt changes relating to personal records in the legislation would be extremely damaging to individuals. The commissioner was particularly concerned about its impact on people who had been in residential institutions and the parents of children whose organs had been retained following their deaths.
Mr. Bowers outlined a detailed analysis of his concerns in those cases and he also specifically referred to the death of baby Livingstone in Monaghan and the different reports that had been published. Deputy Ó Caoláin is much more au fait with the detail of that case. Reports were published by the health board concerned, the Department of Health and Children and possibly by another body. Only for the FOI Act, all the information contained in them may not have been revealed. This information was important to the parents and grandparents of baby Livingstone.
Mr. O'Gorman, Mr. Murphy, Mr. Bowers and others, with a great deal of goodwill, mentioned the impact of the amendments relating to personal information. They pointed out that they would be extremely negative and could potentially be distressing and lead to more litigation involving greater costs to Government Departments in the future.
The media made a presentation to the annual conference, as did Dr. Maeve McDonagh, who also made a presentation to the committee. The views were known and the Government is also entitled to hold its view. The system in my Department works through networks where matters of concern are brought to the attention of the central policy unit. Mr. Brady and Mr. Dooley of the NUJ met my officials last week. I understand the group referred to is a technical advisory group, which met frequently in the early stages of the Act and less frequently as it was bedded down. Only one person turned up at the last meeting of the advisory group in March 2001.
Amendment put.
The Committee divided: Tá, 5; Níl, 7.
Tá
- Boyle, Dan.
- Bruton, Richard.
- Burton, Joan.
- McGrath, Paul.
- Ó Caoláin, Caoimhghín.
Níl
- Finneran, Michael.
- Fleming, Seán.
- Lenihan, Conor.
- McCreevy, Charlie.
- McGuinness, John.
- Nolan, M. J.
- Power, Seán.
I move amendment No. 2:
In page 5, before section 1, to insert the following new section:
"1. - The provisions of this Act shall not commence until the Information Commissioner has conducted a review of the Act under section 36 of the Principal Act and thereafter different sections may be commenced by the Minister as appropriate.".
Amendment put and declared lost.
Amendments Nos. 6, 7 and 8 are related to amendment No. 3 and may be discussed together by agreement.
I move amendment No. 3:
In page 5, before section 1, to insert the following new section:
"1. - The long title of the principal Act is amended by substituting 'PERSONS' for 'MEMBERS OF THE PUBLIC'.".
It is proposed to amend the Long Title of the Principal Act by inserting the word "persons" in substitution for the words "members of the public". The amendment was recommended by the Information Commissioner. It clarifies the Act and puts beyond doubt the right of representative groups to seek information under the Act. This is important, particularly in regard to advocacy groups and their right to represent individuals within society. The change proposed is particularly important to advocacy groups which often represent people who need assistance to vindicate their rights and entitlements and who do not have the wherewithal to articulate their own cases. There are many examples of people collectivising in recent years to act as an effective lobby. Some groups have been mentioned such as Parents for Justice. This group was set up by parents who endeavoured to establish the truth about the removal of organs of children who were lost at birth. We have advocates on behalf of victims of child sexual abuse and child abuse in general, groups such as the Survivors of Child Abuse, SOCA, and many others. Each of these groups is entitled to give effective representation to individuals.
It is important that we recognise the difference between persons and members of the public. The question could be asked if we are members of the public and where and with whom is the differential being made. It is persons, people and individuals. There is no distinction between the Minister or anyone else. We are all persons. It is critically important that we affirm the difference between what the word "person" represents and "members of the public" which suggests that there is a differential and that there are two different levels or tiers of entitlement and rights of access to information.
I have moved amendment No. 3 and No. 7, which is related, deals with this differential. Amendment No. 7 seeks to insert in the Bill the words:
'person' shall be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of individuals as well as an individual.
Again that clearly outlines the importance of making the difference and affirming the point that access under freedom of information is the right and entitlement of all citizens and people acting on behalf of others.
I have more or less the same arguments on the basis of the valedictory commentary presented by the Information Commissioner. The distinction between persons and members of the public is a fairly sensible alteration and is in marked contrast to the attempts within the amending legislation to change language and make it more restrictive. The term "members of the public" is more embracing than "persons" which can be subject to a narrow definition in other sections in the Bill. It is important in reviewing freedom of information legislation that we try to make it as open as possible.
On amendment No. 8, which defines "person" not only as an individual but as a body corporate, part of the ongoing debate about the Bill is not only about accessing information that relates to people named or cited individually but also that it appears that such information will not be available to people acting as part of a corporate entity or a wider body.
One of the many strengths of society is that, despite many pressures in recent years, we still organise ourselves on a community and voluntary basis on a large scale. We should have all-embracing freedom of information that allows people, whether they operate as individuals or part of a wider mass, to access information that allows them to continue to operate in society in whatever form they choose. My fear is that, by having narrow definitions, we are closing doors that should not necessarily be closed.
These amendments form part of the recommendations the Information Commissioner made. I would have thought them fairly uncontroversial and I hope the Minister looks on them in that way so that we might be able to bring at least some form of positive change to this amending legislation.
Amendment No. 6 in the name of the Labour Party is very similar to the amendments tabled by Deputies Ó Caoláin and Boyle. They are uncontroversial amendments which simply include the capacity in the Bill to define a person as including a corporation, a body corporate or an unincorporated body of persons to clarify that the Bill applies not just to individual members of the public but also to organisations or groups of people who come together for a specific purpose and who may have reasons to use the Bill.
The Minister referred earlier to the conferences held by the Information Commissioner and suggested that, although the commissioner perhaps was not aware of it, these conferences and the public speeches made by him were part of the consultation process because they were used by the Department. The Information Commissioner has put forward this technical amendment. It would not damage or impose a restriction or limitation on the Minister's Bill. It is difficult to understand why the Minister refuses to accept it.
Just before the division the Minister, if I heard him correctly, said that he met the National Union of Journalists last week.
My officials did.
They met Mr. Dooley and Mr. Brady, two officials of the NUJ. The union sent me a communication last week that said that the way the Government was dealing with the Freedom of Information Act was essentially in breach of the partnership agreement and that to introduce a Bill that breaches the terms of the proposed agreement before the ink was dry was an act of bad faith by the Government.
Mr. Dooley said that there was no consultation with the social partners on fundamental legislation dealing with the very concept of good governance. The public service unions were not consulted. There was no process of consultation and, as for giving sufficient notice, the reality is that the Government deliberately and systematically set out to push the Bill through in a timeframe that excluded the possibility of dialogue.
Unfortunately, that appears to be the point at which we are. The Minister received his instructions from some unknown coterie or people in the Cabinet. We have heard various suggestions. I was interested by the speech of the Minister for Justice, Equality and Law Reform when he spoke on Second Stage in the Dáil. It was not in his script and I think he was speaking from the heart and not shooting from the hip as he usually does.
The Minister, Deputy McDowell, said that, when he was Attorney General, his office had almost nothing to do with the Freedom of Information Act because it worked on current Government legislation which was outside the terms of the Act. However, he was shocked and appalled when he took office to find that the Department of Justice, Equality and Law Reform was subject to the Freedom of Information Act.
I do not know if the shock was brought on by climbing all those lampposts and then finding himself in Government and not in, as it were, an enclosed part such as the Attorney General's office. I do not know whether the Minister, Deputy McDowell, was part of the inspiration behind this draconian legislation. From my knowledge of the Minister for Finance, this legislation is not his style and I do not see what he has to gain from it politically.
Given that the opportunity for dialogue has been excluded, to use the terminology of the secretary of the NUJ, and in light of the fact that the Information Commissioner is independent of the Dáil, the Government and the public service and has no one's interest at heart except the public good and the terms of the Act, could we not have an effective political truce whereby the Minister would offer to accept the reasonable amendments of the Information Commissioner which are meant to work in the public good and for the operation of the Act? The commissioner is due to retire shortly so he has no axes to grind with anyone. My amendment is similar to others and I ask the Minister to accept the reasoned, moderate and modest comments of the Information Commissioner on the Act.
I am not accepting these amendments which arise from a list of amendments to the principal Act published by the Information Commissioner. The 1937 Interpretation Act provides that in the absence of a contrary intention, person includes a body corporate. The advice of the Attorney General is that the Long Title of the Freedom of Information Act, which refers to members of the public, contains such a contrary intention. In other words, the Act provides a right of access to records to natural persons or individuals. In practice this has not given rise to any practical difficulties. While bodies corporate are not natural persons it is nevertheless open to any individual within a body corporate to make an FOI request in an individual capacity for any information. These linked amendments would provide for "members of the public" to be replaced by "persons" in the Long Title of the principal Act and the definition of person in section 2 would be changed to say, in effect, that person means a body corporate and unincorporated body of persons and an individual.
With respect, enshrining in law a definition that defines a person in terms of three different yet apparently equal categories carries the risk of creating a confused situation. I have been advised by the Attorney General for that reason not to proceed with these amendments.
I provided an example in the Seanad debate of a journalist who makes a request while working for one newspaper and then leaves that newspaper, either going freelance or working for another newspaper before the final decision on the request is made. When the public body comes to release the information, the journalist claims he made the request in a personal capacity, while his former employer claims it made the request. It should be borne in mind that the period between making a request and the final decision can be quite some time, particularly if the request involves a subsequent review by the Information Commissioner. The public body obviously has no way of knowing whether the journalist was directed to make the request by an editor or whether it was made in a personal capacity, nor would it be appropriate or possible for the public body to ascertain what went on between an editor and individual journalist to establish which of them made the request.
By taking the view based on legal advice that the Act confers a right of access on natural persons, there is clarity as to the ownership of the information. On the other hand, our advice regarding these amendments is that they could create a confused legal situation which could in turn result in practical difficulties for public bodies.
The Minister's explanation is very interesting. Again, it is a specious argument. There is an overall philosophy informing freedom of information, the harm test. The Minister offered us the example of a journalist who is changing jobs and going freelance or working for another media outlet. What conceivable harm could it do to have the notion of dual use, dual purpose or multipurpose use, as exists in relation to many other areas of Government activity? There is no way the public interest or good is harmed in that way.
The Minister knows that in relation to trade matters the notion of dual use certificates is widely used. Dual purpose and multi-purpose use are concepts widely used in Government on different occasions. We do not have to find complicated examples. It is interesting that the Minister's focus is on a working journalist who changes job, which becomes the reason for shutting down the information: a working journalist is asked by an editor and makes the request in his or her name before subsequently changing jobs. If the information sought by the journalist passes the harm test, what problem is there in the FOI decision maker phoning to ask which it is, as has been the case up to now? The key decision is to release the information, not the exact person, individual, newspaper or other medium which is looking for the information. The key decision in the Freedom of Information Act is whether information which has been requested passes the harm test and falls within the ambit of FOI. If it does, then even if such information may be trivially embarrassing, it must be given. The Minister's example is interesting but it is often easily addressed by different elements of the public service. Individuals who are also part of organisations have dealings with Government and items can be dual or multi-purpose use.
The Minister, despite the use of the legal advice, has not responded to the arguments which have been put to him about these amendments. It is reasonable for someone to ask the Chair or the Minister whether they are members of the public. The phrase, a "member of the public", denotes there are some who are and some who are not because of their respective roles. People have different perceptions and ideas as to who is a member of the public. Whatever about people asking if the Chair or the Minister is a member of the public, one question they will not ask is whether either is a person. It is obvious that they qualify. We are seeking to substitute the word "persons" for "members of the public" and the further amendment, as the Minister indicated in quoting the 1937 Act, indicated the definition of persons in its widest understanding, including the body corporate, corporation aggregate or corporation sole. This may be seen as a small aspect of the debate on this Bill but it is important as it puts beyond doubt the entitlement of the individual or those working on behalf of the individual to seek and secure relevant information.
This spells out the Minister's intent and approach to the sitting of the committee. The only concession he is likely to make to the cogent arguments being presented to rescue some elements of the original Act is when he agreed to the change of time at the beginning of today's meeting. That is about the height of the concessions he is going to make to Opposition Deputies or to the many interested members of the public or groups and bodies we represent in our arguments. I reject the Minister's advice. It does not hold up to any serious scrutiny and I have demonstrated a clear way to establish the right of all to seek information - it is to change the wording to "persons".
I have outlined the basis on which I am not prepared to accept this amendment. This is an issue of clarity, not harm. Under the Act any person can make an FOI request and any person in any corporation can make a request. This is clear and unambiguous and the Attorney General has advised against these amendments. All natural persons are members of the public.
Regarding the situation cited of the journalist, the information was due to be released but both journalist and newspaper claimed they made the request and both refused to let the other party receive the information. Where the request is from a natural person the position is clear. The information was released to the journalist and, subsequently, to the newspaper. In practical terms, the 1997 Act has caused no difficulties, it is clear and unambiguous. We are talking about a natural person and if an organisation wants the information, it gets the secretary of the company to apply for it. To do it any other way we would have to redefine "person". We would have three equal categories and that would cause a great deal of confusion. I agree with the advice of the Attorney General in this area and I reject the amendment.
Amendment put and declared lost.
Question, "That section 1 stand part of the Bill", put and declared carried.
SECTION 2.
Amendment No. 5 is an alternative to amendment No. 4 and they will be taken together by agreement.
I move amendment No. 4:
In page 5, to delete lines 21 to 23.
This refers to the definition of "factual information" that includes "information of a statistical, econometric or empirical nature together with any analysis thereof". The amendment reflects the concern that the Bill limits the definition of "factual information" to statistical or empirical data. The high level review group made this recommendation and the Irish Council for Civil Liberties has expressed the view that it could restrict the type of information released. While the wording states that information "includes" statistical or empirical data, the interpretation could be that a request is fulfilled if information that only reflects statistical or empirical data is released. Some might interpret that information of that nature might suffice when it will not.
The high level review group referred to the British Act when bringing in this proposal. We do not need to be told how much less perfect the British legislation is than the 1997 Act. This is a weakening of the standards incorporated in the Act that guarantee a right of information. The high level group, without looking at the wider experience, refers only to the British experience, which falls far short of that enjoyed by the citizens of this jurisdiction since 1997.
This change came from a fanciful reason for tabling an amendment by the high level group. It cited an instance that a person put forward the view that the observations of Ministers on policy proposals in a memorandum for Government were a matter of fact because they reflected the views of the Ministers concerned and should therefore be discoverable. The high level group did not give an example of any case where such a view, when expressed, was acceded to by the head of the body concerned or by the Information Commissioner on appeal.
This restriction does not stand up to scrutiny. What is meant by the Minister's new restriction? Statistical, econometric and empirical are not intuitive terms, they are designed to confuse what will be made available. I suggest not only including "analysis", which may be technically constrained and result in limited information being made available, but "evaluation" in order that if a great amount of empirical data are presented, there would also be an evaluation of its meaning provided.
I am suspicious of this amendment to the Act. There was no analysis in the high level group other than the fanciful example it put forward.
Sitting suspended at 4.15 p.m. and resumed at 4.45 p.m.
The Minister was about to respond in respect of amendments Nos. 4 and 5.
I will not accept these amendments, which would result in the removal of the definition of "factual information" from the Bill. The provision which clarifies the meaning of "factual information" arises from a concern expressed by the high level group that there was some misunderstanding in this area. The Attorney General has also advised that it is desirable to define the term in the Act.
The definition in the Bill is based on advice received from the Attorney General that "factual information" comprehends things which are known to have occurred, to exist or to be true in the sense of being tangible facts and figures and that things which can be described as proposals, opinions or consultations should not be regarded as factual. I am also concerned that defining "factual information" as including the evaluation of information of a statistical, econometric or empirical nature could create the confusion I am seeking to avoid. "Evaluating" as I understand it means ascertaining or judging the value or worth of a thing. As such, it appears that it could be regarded as encompassing the expression of opinion.
I am disappointed with the Minister's response to the amendments. The Minister proposes to insert additional definitions in the text of the Bill: that factual information includes information of a statistical nature, etc., together with any analysis thereof. We must take certain concerns on board as representative of experience and genuine fears that derive thereof. There is ample evidence of a minimalist approach to responses on many occasions when information was sought under the Freedom of Information Act. The adding of this definition in the view of a number of bodies that have commented on it potentially opens up the opportunity not only to regard this as an inclusion but also that it could operate as an either/or factor. Given the stance of some, it could well invite a release of information, statistical, econometric——
There is a vote in the Dáil. We will have to suspend and I ask members to return immediately upon conclusion of the vote in the Chamber.
Sitting suspended at 4.50 p.m. and resumed at 5.20 p.m.
I have listened to the valid concerns of others, including the ICCL, that the introduction of this paragraph will be regarded by some as an invitation to continue their minimalist attitude in furnishing specific information and that we will see responses built around the element highlighted in the section - information of a "statistical, econometric or empirical nature". The definition should be deleted.
I missed the Minister's response to this amendment and would like to hear it again because I have an associated amendment. What does the definition mean?
The definition in the Bill is based on advice received from the Attorney General that "factual information" comprehends things which are known to have occurred, to exist or to be true in the sense of being tangible facts and figures and that things which can be described as proposals, opinions or consultations should not be regarded as factual.
Proposals?
Should not be regarded as factual.
Does that mean that in future working papers from groups such as the tax strategy group will be excluded?
No, the workings of the tax strategy will be published as normal.
What about proposals that come before a Minister or group of officials under the expanded definition of Government?
There is no expanded definition of Government, there is an expanded definition of Government records, a different thing all together.
What is excluded now that was not excluded previously?
Nothing is excluded that was not previously excluded, we are simply tightening up what is regarded as "factual information". Deputy Ó Caoláin wants to remove the definition of "factual information" from the Bill.
I proposed the addition of "evaluation".
That is a total misrepresentation on the Minister's part.
The Deputy wants to delete lines 21 to 23. That would delete "factual information includes information of a statistical, econometric or empirical nature, together with any analysis thereof".
There is already a reference to "factual information" in the substantive Bill.
It is not defined in the original Act and we are defining it here for clarity. The Deputy proposes to delete that definition.
It is disingenuous of the Minister to suggest that the deletion of the definition would invite a more restrictive understanding of the obligation on people under the terms of the Act. That is nonsense. "Factual information" can now be construed to be of a "statistical, econometric or empirical nature" - that is the key concern. We do not want limiting definitions because "factual information" should apply across the board.
If Deputy Ó Caoláin reads the Bill, he will see on page 5 that it states "factual information includes", the definition is not exhaustive. In the original Act, "factual information" is not defined at all.
If the Government decides to proceed with a PPP, will we have access to the comparitor analysis the Department carried out of the alternative of carrying out the project in the public sector? That is the sort of information to which we should have access.
This change is to define in the interpretation section the meaning of "factual information".
It really refers to the Government decisions mentioned in section 19(3). The Minister says he will publish factual information about a decision that has been taken. I do not believe the Minister would close off access to the public comparitor of a PPP project. We ought to be able to see that.
That will not be closed off.
Why did the Minister feel obliged to introduce a definition of "factual information"? The thrust of the Freedom of Information Act was to oblige Government Departments to give out information subject to a harm test. By creating this definition, someone in the bureaucracy will now decide that certain issues fall within the definition. This is typical of the Bill. It attempts to restrict access to information. Will the Minister give us one example of where the absence of a definition of "factual information" in the Freedom of Information Act caused any harm, loss, delay or significant obstruction to Government?
The Minister says it is not the Government intention to restrict access to anything, but people who have concerns based on experience are worried about the definition imposing a limitation. Under the current Act, it is expected that any factual information will be provided. This definition invites those who will operate the minimalist approach to exorcise their need to respond by stating information is statistical, econometric or empirical. This is the fear. The Minister can give assurances but the requests do not go to him. Can he assure us that the practice will match his commitments in all sectors?
This arose from a concern expressed by the high level group that there was a misunderstanding in this area and the Attorney General further advised that it would be desirable to define "factual information" because it had been misinterpreted. A decision maker released a Government memo which showed the views of Ministers because he decided it was a fact that they held those views. Does Deputy Richard Bruton think that is what "factual information" means? Does he not think that would be seen as a vague interpretation in both Kildare and Meath?
The head of Department who did that made a strange decision.
Quite.
Should we change the definition because of a bizarre decision by one individual?
That is the point. Under the 1997 Act, which came into effect when I became Minister for Finance, I signed a raft of orders to appoint decision makers, usually at principal officer level. That is the last I heard about it. I have no input good, bad or indifferent in any releases from my or any other Department. That is what that deciding officer so decided but it would not be a bad idea to clarify it.
Could I ask the Minister——
One could——
The net point about the Freedom of Information Act is whether any harm was done. The Minister explained how the case arose but was any harm done to the public interest, other than to show that two members of the Government held different views on the same issue? Perhaps this was an issue between the Minister and the Minister for Health and Children but people are intelligent. They do not believe that every member of Government agrees with every other member. The test of the Act is the harm test. Again, a decision maker decided to release information about opinions held by two Ministers. We are now being told that it is not factual and, therefore, in future we will not hear about the views of different Ministers.
There is no harm test relating to Government records. It is a class exemption in the 1997 Act. The harm test does not apply to Government records and the example I gave concerned a Government memorandum which was released on that particular date, although not from my Department.
So therefore on another——
The harm test the Deputy refers to in the 1997 Act does not apply to Government records.
I know that.
They are a class exemption.
The Minister is saying that a decision maker, a principal officer somewhere in the public service, misinterpreted the Act.
No, I am not saying that. I am saying——
That is what the Minister is implying because if it was information——
No. I am implying, in relation to the question put by Deputy Richard Bruton, that it was a peculiar view of factual information that they held those views. I suppose they may think like that in Borris, County Carlow. Would that be the case, Deputy Nolan?
I concede the geographical——
I do not believe it is factual information and Deputy Burton, who is a practising accountant for a long time, would hardly regard that as factual information but I submit one could take that view in the hallowed halls of some debating societies.
If this civil servant had a rush of blood to the head and decided this was factual information that should be put into the public domain, in the reasonable view of that person's superiors, they could either have sent the person for retraining in what was factual or non-factual information. It does not mean that we close down whole sections of the Act——
Or perhaps make them members of the Labour Party for six months.
Chairman, we are going nowhere with this Minister.
Is the amendment being pressed?
Let me make one comment before you continue. I saw the Minister's imperial intent when he extended the notion of fair-mindedness to fair-minded men in Meath and Kildare, although it was only men to whom he referred. Thank God it is not only in their hands. He is trying to move into Carlow but I dare him to come north. Of course I am pressing the amendment.
Amendment put and declared lost.
I move amendment No. 5:
In page 5, line 23, after "analysis" to insert "or evaluation".
Amendment put and declared lost.
Sitting suspended at 5.35 p.m. and resumed at 6.05 p.m.
Amendment No. 6 was discussed with amendment No. 3. Is the amendment being pressed?
Yes. I move amendment No. 6:
In page 5, paragraph (c), between lines 23 and 24, to insert the following:
" 'person' shall include a body corporate, a corporation sole or an unincorporated body of persons;".
Amendment put and declared lost.
Amendments Nos. 7 and 8 not moved.
Question proposed: "That section 2 stand part of the Bill."
I oppose the section.
Question put and declared carried.
NEW SECTIONS.
I move amendment No. 9:
In page 5, before section 3, to insert the following new section:
3.-Section 3 of the Principal Act is amended in subsection (1) by the addition after paragraph (a) of the following paragraph:
'(aa) by regulations amend the Third Schedule so as to insert therein reference to any additional provision of an enactment as appears to the Minister to be appropriate having regard to the spirit and purpose of this Act,’.”.
This is an amendment that was suggested by the Information Commissioner. It would allow additional Acts to be added to the Third Schedule, which sets out various Acts, by regulations. This would allow such Acts to be automatically overridden by this Act rather than to be in conflict with it. That is clearly desirable. This is another example of the freedom of information commissioner seeking to be helpful to the positive operation of the Act. I do not understand why the Minister would not be well disposed to accepting it. I would be interested to know why he would seek to oppose it.
I will not accept this amendment which I note was also suggested by the Information Commissioner. The amendment seeks to give the Minister for Finance the power to add in regulation provisions in other enactments that authorise or require the non-disclosure of a record to the Third Schedule to the FOI Act. The effect of including a provision in the Third Schedule is that FOI overrides such provisions when a request is made under that Act. My opposition to this amendment is based on legal advice.
There is a mechanism within the FOI Act for reviewing the operation of secrecy provisions in other enactments. Subsection (2) of section 32 of the principal Act conveys specific functions on a joint committee of the Houses of the Oireachtas to review the operation of provisions in enactments that authorise or require the non-disclosure of a record with a view to recommending their amendment or repeal or their inclusion in the Third Schedule to the FOI Act. I understand this committee has already undertaken a considerable amount of work in this area.
I would like the Minister to give us an example of how accepting this amendment would in any way inconvenience the Government. When the high level committee appeared before this committee it said the operation of the FOI Act - transparency, accountability and so on - had made for better Government. The final line of the preface of the high level committee's report is that the operation of the FOI has been good.
The freedom of information commissioner has an independent role above that of the Dáil, the Government and the Civil Service. We had a discussion earlier with Deputy Finneran and I quoted from statements made by the freedom of information commissioner to the committee during the hearings where he stated he had heard about the amendments to the Act through the media. Deputy Finneran asked him had he heard that through the grapevine and he acknowledged he had heard about the review by the high level committee only through the grapevine.
Given the bone fides of the freedom of information commissioner - despite the unwarranted and intemperate attack on him by the Minister, Deputy McDowell, who on coming into the Department of Justice, Equality and Law Reform clearly felt that living with the Freedom of Information Act was one step too many - Deputies on all sides of the House are aggrieved about this because the freedom of information commissioner has acted correctly and scrupulously in the public interest. This is an amendment put forward by him. It is a reasonable one. It is a technical amendment effectively to allow things to be done in a better way by means of including Acts in the Third Schedule.
In his response, the Minister kicked to touch. The work of this committee during the last Dáil where some of this was touched upon, should be referred to in relation to this. The work on this concluded with the fall of the last Dáil. We now have a clear and precise suggestion in this regard by the freedom of information commissioner. It would not hurt the workings of Government to go down this road and to be true to the spirit of the original Act.
It is not good practice to introduce regulations which modify a provision in another Act. I am advised that such regulations would be open to legal challenge. There is a mechanism within the principal Act for reviewing the operation of the secrecy provisions in other Acts. There is the business of allowing a joint committee of the Houses of the Oireachtas to review the operation of those provisions. The principal Act has given a joint committee of these Houses a specific function in this regard. It would not be appropriate for the Minister for Finance to interfere with the joint committee.
I have no problem in praising the work of Mr. Murphy as Information Commissioner and his long career as a public servant. When he was before the joint committee he made the point that policy matters are matters for the Government and that he would not stray into the policy area. He was just giving some technical advice on some areas, which we examined in the Department, but we found in regard to most of them that there is no need to do as he suggested. That is not saying anything that takes from Mr. Murphy's independence.
I will not embarrass Deputies by checking the Official Report when Mr. Murphy was appointed as Ombudsman in 1994. I am sure Mr. Murphy would be amused by some of comments now being made about him by some Members of the House.
The point about Mr. Murphy and the office of the freedom of information commissioner is that as he said——
I remember what was said.
He might be a good example of a poacher turned gamekeeper.
Mr. Murphy was appointed Ombudsman in 1994 having been a distinguished civil servant. There was a great deal of opposition and it was asked why a civil servant was being appointed Ombudsman.
I remember that as well.
Deputy Burton was a member of Government at the time.
I remember that.
I am sure she recalls Mr. Murphy's appointment. I decided to make him Information Commissioner as well in 1998 under the remit of the Freedom of Information Act. That is some historical knowledge. I am advised there is no need to do this matter he suggested and, in any event, my legal advice is that it would possibly be open to legal challenge.
That is not the legal advice available to me. The Information Commissioner's view is that this would allow additional Acts to be added to the Third Schedule by regulation and that would allow such Acts or parts thereof - the original ones were listed in the Act at the time - to be automatically overridden by the Freedom of Information Act rather than for there to be any conflict. To me that is a sensible way of doing business and the commissioner's proposals in this area are a good example of where time would be saved.
It would be interesting if we could obtain a copy of the Minister's legal advice on this because some would say the commissioner has, in his report, been true to his original calling as a public servant and been extremely cautious in what he has said on the Act. He has been extremely careful and conservative in a general sense in the comments he has made in his report, which he obviously had to prepare in a rush. His amendments are headed as ones to improve the operation of the Freedom of Information Act. They are not to be smart.
Is the amendment being pressed?
Yes.
Amendment put and declared lost.
I move amendment No. 10:
In page 5, before section 3, to insert the following new section:
"3.-Section 3 of the Principal Act is amended by inserting the following subsection after subsection (6):
'(7) The Minister shall collect, collate and publish (within two months of the end of each calendar year) relevant statistics in relation to freedom of information usage in the relevant year and shall by regulation require public bodies to provide him or her with such statistics, and in such manner (including timescale) as the Minister determines in relation to freedom of information usage in the relevant year.'.".
This amendment was also recommended by the Information Commissioner. It is no harm to record that I did not agree with everything he had to say about section 3. I will oppose the section. The amendment that has been tabled was at the instigation of the commissioner. Clearly we are not at one with him in all this.
It is logical that such statistics should be collated, prepared and made available on a regular basis as is the proposition that this be done each year and that they be published within a short timescale thereafter. This is essential information for all concerned with the working of the Bill. The operation of the Act needs to be kept under constant review. This type of mechanism allows for a regular annual review on a statistical basis. I hope it invites and secures a much closer examination of the workings of the Bill while also ensuring accurate and full information is provided to all inquirers.
I had an amendment with a similar wording. It is important we have up to date statistics on the use of freedom of information because much of this debate has been informed by impressions that those who want to change the Act radically want to put across. One of the most significant impressions that the Government has attempted to put across is that freedom of information has been less a democratic tool for citizens and more a journalistic tool for the media. Even the available statistics refute that fact. The submission we received from the National Union of Journalists had an appendix that stated there was greater use by members of the public of public interest questions than there was by the journalistic profession.
It is important that members of the public ask questions not only relating to their personal dealings but also to obtain information on the business and workings of Government. The wording suggested by the Information Commissioner is a way of putting the information in a user-friendly form and making it accessible while also placing an obligation to collect it within a short time and from all the agencies to which the Act applies. On those grounds, I commend the amendment and hope the Minister considers it.
I strongly support the amendment in the names of Deputies Ó Caoláin and Boyle. It is extremely important that Departments take their responsibilities seriously and see as part of that proper accountability for reporting on their performance under the Act. Timely reporting is crucially important. I have seen the Information Commissioner go further and be quite critical of some Departments in respect of the quality of the records they maintain.
In time, the Minister should encourage Departments to improve the quality of their records so that people who make inquiries of this nature can obtain a better insight into their personal circumstances or into issues of public importance. I hope over time that Departments will work with the Information Commissioner to develop protocols for the maintenance of records.
I would go further and request specifically that we have reports relating to the period it takes to determine appeals because I know the Information Commissioner is swamped with work. I have heard reports that it takes up to three years for decisions to be reached on appeals. If the Information Commissioner is being bombarded with appeals to such an extent because Departments are evidently taking very restrictive views of their obligations under the Act, this ultimately grinds down the system.
It is crucially important that the Minister, who is ultimately responsible, ensures that Departments do not take decisions in a conservative way, as has been evidenced, confident in the knowledge that it will take so long for an appeal to be determined by the Information Commissioner that, by the time the information is released, it will be of no great relevance or value. That is a sin of omission as opposed to a sin of commission.
Departments are refusing to release information which has the effect, given how the Information Commissioner is swamped with appeals, of denying information for a long period. I would like to see the Minister commit resources to the Information Commissioner's office so that appeals can be made in a timely way. He should also encourage Departments to take decisions in a way that does not create an artificial need for appeals because of their restrictive view and also discourage them from using the right of appeal as a mechanism simply to delay the issue of information that should rightly be in the public domain but which covers their butt for the time being. That is a rightful criticism which has been made of the use of appeals by Departments which is frustrating the public's use of the Act. This amendment raises important concerns and its acceptance by the Minister would stimulate a much better approach to the use of the Act.
I will not accept this amendment. It is not clear that there is a statutory obligation on the Minister for Finance to collate and publish statistics or on other public bodies to provide such statistics within a set timescale to the Minister if necessary. In view of the very wide range of bodies covered by the Act it would also be very difficult to operate such a provision. Comprehensive statistics on the FOI Act are collated both by the Department of Finance and the Office of the Information Commissioner. These are published in the annual reports of the Minister for Finance and the Information Commissioner. This amendment was also suggested by the Information Commissioner who has been concerned by aspects of the process of statistics collation. In view of this, contacts have also been established between the Department of Finance and the Office of the Information Commissioner with a view to simplifying and standardising the process of statistics collation. This matter has also been under consideration by the relevant FOI networks.
The annual report produced by the Minister for Finance includes all types of statistical information. This report is required under sections 15(5) and 15(6) of the Freedom of Information Act and includes in the appendix information on the various bodies, the types of requests, those granted, appeals and so on. The Information Commissioner also publishes a report so it is all there in the report, which is published with a lovely photograph of my ministerial colleague, Deputy Parlon.
Under the factual information provision, is the Minister stating a fact about Deputy Parlon's photogenic aspect? Again I am disappointed by the Minister's response to the proposal. The document to which he referred does not address the need the amendment seeks to fulfil, which is the important, component by component assessment of the performance - statistical information regarding the number of inquiries, the refusals, the appeals and so on. It is very important that each of the constituent bodies which come under the terms of the FOI Act have an obligation to provide a statistical analysis of the operation of the Act within their respective Departments and organisations. It helps to keep the conduct of the Act under constant review, which is important. It would also help to ensure there is an accurate reflection of the working of the Act, Department by Department, body by body, which would point up where problems and deficiencies in the operation of the Act may occur. I expressed concerns earlier regarding some people's experiences, individuals and members of the media, in making requests under the terms of the Act.
This proposition merits consideration by the Minister and I am at a loss to understand why he will not agree to this amendment, so that within two months of each calendar year these statistics would be released across the board. I ask the Minister to reconsider his position.
I am sorry the Minister is taking this position on the amendment. He is ignoring the key phrase used both in the amendment and by the Information Commissioner - the term "relevant statistics". There could be information overload in much of what we receive in report form, so this relates to the quality of the information. While there is valuable information in the Commissioner's report regarding the type of people who make requests, it is not as good on analysis of the kind of requests being made and why. It is not very good either on comparing the types of request on a year to year basis.
Before the Deputy goes off on a tangent, I can give him information on any year he likes, body by body. Does he want to know about someone in Cork? I can tell him now if he wants. If he wants anything he can have it.
The point I am making——
Cork Corporation, Cork County Council, Clonakilty UDC, Cobh UDC, Fermoy UDC and Kinsale UDC. The only thing not mentioned here is the Skibbereen Eagle. Everything else is. I can give the Deputy personal information applications received, non-personal, mixed, requests granted, requests part granted——
All general.
Anything the Deputy likes.
The type of relative statistics which could be made available for comparative purposes for each of these bodies could show us on a year to year basis——
They are all under one another so the Deputy can compare them county by county.
It is a listing rather than an analysis. That is the point of what the Information Commissioner is saying.
One can see if Kildare is good or bad vis-à-vis Cork or Skibbereen.
It is not a question of numbers but the types of requests being made and why. The phrase is "relevant statistics" and if we compare this on a year to year basis we can see the type of request being made to each body and whether that changes on a year to year basis.
As a matter of information for the chairperson, Deputy Fleming, in Portlaoise Town Council and Mountmellick Town Council there were no requests from 1998 to 2001.
We are very happy down there.
Tremendous. They are very happy.
The Minister is still avoiding this. An analysis of the type of request is not being made by each body. It is just a listing of the numbers of request.
The types of request are personal, non-personal——
Did I just ask the Minister two questions? One was whether he had ascertained from the Information Commissioner——
In my reply——
Let me ask the question before he gives the answer.
Has he ascertained from the Information Commissioner what prompted his concern, which is set out in the appendix to his report? He indicated that if it cannot be achieved through regulation, which perhaps the Minister can do for him, he suggests the alteration should be made. Has the Minister found out from the Information Commissioner what prompted his concern? Is the Minister considering such a regulation?
Second, can the Minister confirm that the Information Commissioner is not able to make decisions on appeals within a reasonable period and that his office is under severe pressure because so many appeals are going in? Can he make arrangements either to improve the process whereby the Departments take decisions and not cause appeals unnecessarily or improve the resources of the Information Commissioner to deal with those appeals?
In my earlier reply I said I noted this amendment was also suggested by the Information Commissioner. In view of this, contact has been established between the Department of Finance and the office of the Information Commissioner with a view to simplifying and standardising the process of statistical collation. The matter has also been under consideration in the relevant FOI networks. If there is a better way to collate the information we will use it.
What is the Information Commissioner requesting?
One of the reasons the Information Commissioner wants to turn the whole responsibility to the Department of Finance is to get it out of his office and away from his staff. We produce the information I have here and the Information Commissioner produces information relating to him also. He wants the whole business transferred to the Department of Finance or some other body. If there are better ways to give the information we will use them but it does not need a particular section of the Bill.
It needs regulation.
I can give the Deputy from Cork the breakdown of all requests by type of requester under journalist, business interest groups, Oireachtas Members, staff——
I know that.
I can give the Deputy all this information.
How does one analyse the information in the questions being asked in each body? That information is not being collated.
We can take it up. That would not be done by the Deputy's amendment. I can take it up with the relevant FOI networks and ask for better information to be incorporated into future reports if necessary. That is not a problem; that does not necessitate an amendment. There is a good deal of information here. If the Deputy wants more——
By way of clarification——
By the way, Chairman, I should have mentioned also that Deputy Parlon has a colour photograph.
I am aware of that. I want to clarify something for the committee: that report was produced by the Department of Finance. The Information Commissioner himself produces an annual report separate from that, which contains a lot of similar information. Two annual reports have been produced so far and looking at them on a year-by-year basis, as this committee has done, one can see there is quite a lot of information out there.
The point of the amendment, and of the original concern expressed by the Information Commissioner, concerns the quality of the information that is available. That is why the amendment is being moved.
The Information Commissioner only deals with appeals. Only 2.7% of queries were the subject of an appeal to the commissioner from 1998 to the end of 2001.
Almost 3% percent is massive in terms of the numbers of queries.
Am I hearing the Deputy right? Almost 3% is not massive.
In terms of number and volume. As I understand it, it takes three years to determine appeals because of the volume of appeals compared to the resources available.
There have been more than 46,000 requests in total, of which 2.7% ended up being appealed. That is about 1,200 in total from 1998 until the end of 2001.
Is the Minister happy that it is taking three years to appeal a freedom of information request from a member of the public that is denied the first time around? If not, what is he going to do about it?
I am glad the Deputy asked me the question. With my customary great modesty I can tell the Deputy that additional resources have been allocated. Since April 2002, these additional resources have been allocated to deal with reviews within the statutory deadline while clearing up the backlog. I gave the Information Commissioner additional resources for which he is appreciative. He is now able to keep up-to-date with current requests while dealing with the backlog. I knew the Deputy would appreciate that.
If we as a committee are not satisfied about the commissioner's resources we should invite him in some time to discuss it, after which we can file a report.
Chairman, are you talking about the retiring or the incoming commissioner?
I am not specifying that - I am talking about the office.
In 2002, additional resources were given to the commissioner as the result of complaints about the time his work was taking. He is reallocating these additional resources and is taking a sensible approach, as we would expect from the current commissioner, in that the current items are being dealt with within the statutory period along with tackling the backlog. That is within the public domain, as I answered a parliamentary question to that effect.
Is the amendment being pressed?
Yes.
Amendment put and declared lost.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
I oppose the section. As I indicated in my brief contribution in relation to amendment No. 10, section 4(5) of the principal Act, which the Minister is seeking to delete in section 3 of this Bill, requires that where a Minister or Minister of State delegates his or her functions under the Act to an official, a notice must be placed in Iris Oifigiúil. The side note says: "Amendment of section 4 (delegation of certain functions of heads) of Principal Act." It is my contention that this should not be deleted from the principal Act. This is the first instance in which I am at variance with the commissioner's own recommendation. I understand that he was the initiator of the recommendation that this be deleted and I am not in agreement with that view. The current provisions should continue to apply. Where delegation has taken place of a Minister's functions, the matter should be published in Iris Oifigiúil.
We are also opposing section 3. As Deputy Ó Caoláin has said, up to now heads of public bodies have had to have the details of delegation of their powers published in Iris Oifigiúil. The point being made by the Information Commissioner was that many bodies were not actually complying with this section of the Act and I presume his query was about whether it was necessary. The problem now, however, is that heads of public bodies will no longer have to inform Iris Oifigiúil and, by extension, the media and the public, of the delegation of their authority. In future, the public, the media and we as politicians will not necessarily know who is the FOI decision maker in a public body.
I am not clear myself on the day to day implications of this. There should have been a public debate and consultation period to tease out what would happen in practice. For example, if the chief executive of a health board or institute of technology has appointed a decision maker or an FOI officer, it is possible at the moment to find out who this is. In the future we will not know. This, along with other powers contained within the Bill, will, in the absence of evidence to the contrary, make the business of chasing and pinning down information that much more difficult. The Minister has probably never had occasion to use the Act, but I have. I have usually found the decision makers in the different bodies to be quite helpful, rather than obstructive, in advising whether one is following the proper procedure and on the remit of the question. In the future, as happens in the health boards at the moment, we will find ourselves being passed from Billy to Jack to Jane until one has spoken to 25 people all of whom seem to be managers.
I do not know whether we can interrupt the Minister in his other meeting that is going on at the moment, but perhaps he could tell us the intention of his Department in relation to the role of decision makers when the Act is amended. It will be difficult for people who use the Act, particularly members of the public using it for the first time. Journalists and so on will get used to this change, but members of the public and small community organisations will find it quite a disadvantage.
Section 3 removes the requirement for notice of a delegation made under section 4 of the main Act by the head of a public body to be published in Iris Oifigiúil. The suggestion that this requirement be removed came originally from the Information Commissioner. I agree with his view that the requirement has been of questionable value.
Details of delegations made by the heads of bodies that come under the FOI Act are published in the annual report of the Minister for Finance under section 15 of the principal Act. Under this section, each public body is required to publish details of the arrangements made by the body to enable a person to obtain access to records held by the body and to exercise their other rights under the Act. Such details would include the names and designations of members of staff responsible for carrying out such arrangements. The central policy unit of the Department of Finance also maintains a regularly updated list of FOI officers in all public bodies and contact details on its website which is made available in hard copy to anyone who requests it. Individual public bodies also publish contact details on the Internet or make such details available on request. In this context, I am satisfied that the value of retaining a requirement to publish notice of a delegation made by the head of a public body in Iris Oifigiúil is questionable.
The Opposition wants to oppose every section of this Bill but they did not have to oppose this one. One eminent Senator said that he has never even seen a copy of Iris Oifigiúil. I am one of the few people who has seen it. Most people would not even bother looking for it, never mind reading it. I assure Deputy Ó Caoláin it sells nowhere near as many copies as An Phoblacht. It is like the Dandy and the Beano, it does not sell as many as it used to. I was going to name a couple of Catholic newspapers but I would get myself in trouble.
The Minister is in trouble already.
This is opposition for the sake of it, there is no need to publish this in Iris Oifigiúil. Each organisation is required under section 15 of the principal Act to make information about the officers charged with FOI responsibilities available. My Department regularly updates the name, organisation, telephone number, fax number, website address and e-mail of those concerned on its own website. Every organisation subject to FOI publishes the names of its officers regularly. We are not going to increase sales of Iris Oifigiúil or bring in extra money to the State by accepting this amendment.
I should compliment the Minister on his reading material - he gave us an interesting selection. Section 4(5) states that the head of the Department concerned should cause notice of a delegation, revocation or amendment under subsection (3) to be published in Iris Oifigiúil not later than four weeks after the making of the delegation, revocation or amendment, as the case may be. Whatever about the circulation figures of Iris Oifigiúil, it is an official publication and these are official delegations of responsibility in relation to the Act. That is an important point. The Minister may as well ask why bother printing the damn thing at all but the logic of his response would be to do away with the publication because no one reads it.
This is about discipline, ensuring there is best practice and that the public is notified - we are talking about freedom of information after all. All of the authoritative arms of State should be employed to ensure the full dissemination of information is applied at all times. Iris Oifigiúil is still a Government publication and it must be an element of the responsibility of heads to advise the public through that vehicle. Even though the Minister has the support of the Information Commissioner, I do not believe he has offered an explanation for the deletion of the subsection.
Much of the debate has focused on the fact that the Minister did not seek or take on board the advice of the Information Commissioner but when he does take it on board he is criticised. The Opposition cannot have it both ways.
There is no monopoly of wisdom in these matters.
Question put and declared carried.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill".
This goes to the heart of the concerns of One In Four. I have taken the trouble to read the judgment lodged in the High Court that the Minister says he is clarifying. The court was very clear. The Information Commissioner tried to make a decision on four grounds as to whether he would release a record under the phrase "relate to". He had refused to grant a record in one case, saying it had to be viewed in the light of not only whether there was a sufficiently substantial link between the requester's personal information and the record in question, but also cited the circumstances in which the record was created, the purposes behind its creation and what was in the mind of the author at the time of the creation of the record. The court ruled properly that the circumstances surrounding the creation of the record should not come into play and that a decision should be made solely on whether there is a sufficiently substantial link between the requester's personal information, as defined in the Act, and the record in question. The court has been very clear - there is no doubt, ambiguity or need for clarification.
The Minister is substantially changing the substance of this section by saying that people who are looking for historic records will not be able to get them unless they contain personal information. That is a substantial change from the old phraseology of information related to a personal position.
Mr. Colm O'Gorman, the director of One In Four, made it clear to us that pre-commencement records are relied upon to a great degree by people who suffered at the hands of the State when seeking information about how industrial schools were run. He quoted cases where a person could get access to records to validate their memories and experiences but this section closes that avenue off. The testimony of Mr. O'Gorman carried a great deal of conviction for those here today. I am sorry that those members of Fianna Fáil who were here and who were extremely impressed by the evidence are not here to deal with this section.
The Information Commissioner stated that it is clear that records that relate to personal information, as currently provided, encompass a broader category of records than those which contain personal information. He pointed out that this restricts access to personal records. The Taoiseach was at pains to say in the Dáil that no change was being made to access to personal records and the Minister has repeated that and has indicated that he is happy to accept change.
I see nothing wrong with the wording as it stands: it has been clarified by the court's decision. It means that the Information Commissioner or the head of a Department cannot go behind the substantial link and look at what was in the mind of the people who created the record. The judge set out why he took that view and his argument is convincing. He stated that attempting to ascertain what was in the mind of the author of the record could lead to the misapplication of the subsection.
The meaning of the section has been clarified by the High Court and we should accept that and not restrict the terms on which people can get access to their records. The Minister should leave well enough alone and drop this section.
In the discussions on this section, all those who attended the committee hearings, particularly members of the Governments parties, were impressed by the presentation made by Mr. Colm O'Gorman. In addition, various Deputies from Fianna Fáil and the Progressive Democrats, particularly Deputy Fiona O'Malley, were at pains to indicate on Second Stage that they were concerned about this section. I saw a detailed letter in yesterday's newspaper from a member of the Progressive Democrats from Dún Laoghaire-Rathdown County Council again stating that the section, which proposed to change the right to personal information from "relate to" to "contain", was wrong.
All the signals from Fianna Fáil and Progressive Democrats Members are to ask the Minister to change this back and leave it as it is. We have to ask the following questions. What is the politics and who is going to benefit from this change? Who are the hidden persuaders who lie behind this particular amendment? Contrary to what the Taoiseach said, to what, in his usual peremptory way, the Minister for Justice, Equality and Law Reform said, and to what the Minister for Finance sincerely said, that the right of individuals to information and personal records will not be changed by this section, the Information Commissioner, the Irish Council for Civil Liberties and various legal experts, including Dr. McDonagh from Cork, who appeared before the committee and who is the acknowledged international expert on the Bill, all confirmed that they were fearful of the implications of this change allied to the other statement in the Bill on tribunals and the relationship of tribunals to records. For whom is this amendment? People will only be allowed access, subject to 11 exemptions, to records which contain information about them. Excluded will be records about them which do not contain personal information as defined in the Act. The danger is that public servants will use this clause to create mirror records on individuals. Individuals will also not be able to seek an amendment to this information, if incorrect, as they will not have access to all of the records.
The Minister must remember that we in this committee have concentrated, understandably, to a great extent on the trauma which this change poses for at least 100,000 people. These are people who were in industrial schools, people who were involved in the adoption process and the parents of children who died and whose organs were retained. One must remember that this section is routinely used most frequently by public servants accessing their own records and, for instance, records of panels and interview boards which affect them. That is the ordinary routine use of this process in Ireland and in other countries.
We, as a State, have an exceptional history regarding the extraordinary numbers of people we institutionalised. That is an unusual feature of modern post-independence Ireland, that, more than any other country in Europe, for various reasons we institutionalised tens of thousands of our own children. It was not until the collapse of Ceaucescu's Romania that we saw, anywhere in the rest of Europe, a repeat of what happened here.
For whom is this being introduced? The Minister's Department and the Government sanctioned an extraordinary deal with the religious orders for which taxpayers will have to pay. We are already witnessing, from the information that has become available, either through the courts process or through the statements of religious orders, that they have not only made a deal with the Department and with the Government which is advantageous to them, but are fighting every case before the Laffoy tribunal on a line-by-line basis. Who will benefit from this? I suggest that the people who will benefit are not this generation of public servants who have absolutely nothing to do with this or this generation of Ministers who have nothing to do with these records. In the case about which Deputy Bruton read, what was in the mind of the decision maker went back to 1935. The judge referred to information going back over a long period.
We called for more consultation on this in order to tease this out. Can the Minister not accept that this is a bad amendment? It will do damage to people who have already had traumatic experiences at the hands of the State. Why make their experience worse for the sake of whoever the hidden persuaders were who got this change put through in the Bill?
Can the Minister tell us who the hidden persuaders were? Who is to benefit from this? Is it the Department of Education and Science which seems so anxious to protect the interests of those who ran the institutions? Was the Government the subject of private lobbying regarding this change?
The Minister has challenged us by saying that he is prepared to look at this section to come up with an alternative wording which meets what was said in the court reports. However, I have gone to a number of people who have a detailed interest in this and I am quite sure that the Minister's colleague, the Minister for Education and Science, will have told him about his visit to London last weekend. Deputy McCreevy may also have heard about the large meeting on 8 March in Liberty Hall which Deputy Ó Caoláin attended, of people who were institutionalised, all of whom are correctly and understandably fearful that the net effect of this change is to damage their capacity to get the fullest information about themselves, about the conditions in which they were held and about the conditions which covered the running of the institutions in which they were held.
I ask the Minister to withdraw this amendment and to validate what the Taoiseach and the Minister for Justice, Equality and Law Reform stated, which was, that there was no intention on the part of the Government to damage the right of people to access personal information, not only about them but relating to them.
This amendment in section 4 of the Bill represents not only a further restriction, but a significant weakening of the original Act. I must pause to make that point as strongly as possible. This is a proposal on the part of the Minister which many individual members of our respective communities will find hard to understand. We are getting to the kernel of the thinking behind this amendment Bill. What information has already been released or is accessible since 1997 that the Minister does not want to continue to be made available to individual citizens of this State? We need to have it spelt out. We need to know exactly what it is that he is proposing to shroud in secrecy.
Earlier Deputy Bruton referred to what the Information Commissioner said. It has to be emphasised that the Information Commissioner in his commentary stated that it was clear that records which relate to personal information, as currently provided, encompasses a broader category of records than records which contain personal information. This is, as I have said, a significant weakening of the Act.
Deputy Burton referred to the concerns of many of those seeking justice. They are genuinely concerned that this measure will remove critical information which will make their efforts to secure justice impossible. We must appreciate that the Information Commissioner's own views in relation to the difference between "contain" and "relate to", are something we all universally recognise. In that spirit and in the spirit of the case put by the various survivors of child sexual abuse and institutional violence and by others, it is imperative that we recognise that the words "relate to" are the correct formula by which this Act should proceed. Therefore I must vehemently oppose section 4. I again appeal to the Minister to set it aside and to recognise that this is a step that devalues and undermines the quality of the 1997 Act.
On Second Stage, I referred to changes in wording, not only here but in several other places, as being almost Orwellian because the words that are being suggested as changes on the surface seem positive but in practice are meant to be restrictive. They are meant to be a fundamental change from the previous wording and it is meant to restrict the rights of individuals and citizens to make full use of the Freedom of Information Act.
The case regarding who would be affected by such a change has already been well made by the other speakers and I will not go over those arguments. They are the arguments made by groups such as One in Four. However, I challenge the Minister to repeat what he has said throughout this debate, and what Deputy Bruton has already exposed, that it is the court judgment which has forced this change to come about and has inspired this change to be put before us. It is clear to many of us that the court judgment is all too clear and some type of an administrative appalling vista has provoked this type of reaction. In relation to the type of information which can be accessed and by whom, there is no difficulty posed for many of us in what has been suggested in the court judgment and in leaving the Act as it is. I ask the Minister to withdraw that argument and to leave in the Act in some form the necessary legislative provision that will not compromise the rights and ability of people who have been so described who will be threatened by this change.
There is an attempt being made here by the Opposition to suggest that the Minister is involved in some kind of a conspiracy with other Ministers regarding the provision contained in section 4, and that is a bit disingenuous. There is no question of that and it is totally inappropriate to make such a claim.
Section 4 of the Bill amends section 6 of the principal Act by substituting the word "contain" for "relate to" in paragraph (b) of subsection (5) of the principal Act. The purpose of this amendment is to clarify the position regarding the right of access to personal records in the light of a judgment delivered by the High Court in 2001. This judgment is rather technical but if you will bear with me, I will attempt to explain its impact and why the formulation in the main Act has been found to be unsatisfactory.
If you read the judgment you will see that, early on, the judge considered certain factors put forward by the Information Commissioner as relevant to establishing whether a record "relates to" personal information about the person seeking access to it. These were the circumstances in which the record was created; the purposes behind the creation of the record and, in particular, whether it was created with the affairs of the particular individual in question in mind, notwithstanding the fact that the record may not specifically mention or refer to that individual; and what was in the mind of the author at the time of creation of the record and, in particular, whether or not the requester was in the mind of the author.
After considering these factors, in the judge's view, the test to be applied to establish the meaning of "relate to" is whether or not there is a "sufficient substantial link between the requester's personal information as defined in the Act and the record in question.".
The judge then suggested, very optimistically in my view, that it should normally not be necessary to go beyond that test. However, how does one establish what constitutes a "sufficient substantial link" between a record and a person's personal information? What does "sufficient" or "substantial" actually mean in this context? Clearly, there is potential for significant doubt and ambiguity here.
Returning to the judgment we see, however, that it does not offer us any comfort on these questions. Rather, in considering these questions the judge, while saying he would attach less significance to the determining factors identified by the Information Commissioner, went on to suggest that those can be considered in cases of "doubt or ambiguity". In other words, factors such as the circumstances behind the creation of the record, the purpose behind the creation of the record and what was in the mind of the author at the time of the creation of the record, can in fact be considered in cases of doubt or ambiguity in order to establish whether there is a sufficient substantial link between a record and the requester's personal information.
As the judgment did not identify any factors of its own and as the test set down by the court is, with respect, so vague as to create doubt and ambiguity in most if not all cases, the only determining factors we have to assist us in seeking to establish whether or not there is a sufficient substantial link between a record and an individual's personal information are those identified by the Information Commissioner.
In relation to one of these factors, the judgment did acknowledge that it would "usually" be futile to establish what was in the mind of the author of the creator of a record when it was created. However, it is clear that the use of the word "usually" in this context did not preclude this as a potential actor to be considered.
More to the point, the judgment also states:
Where a doubt or ambiguity exists, as to the connection of the record to the requester, a consideration of factors such as . . . . . whether [the record] was created with the affairs of a particular individual in mind, may assist in determining "whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act) and the record in question."
Attempting to ascertain "whether a record was created with the affairs of a particular individual in mind" would involve to some extent attempting to decide what was in the mind of the creator of the record.
I hope I have made it clear why I want to move towards a formulation that everyone, those making requests for personal information and those charged with making decisions on such requests, can understand. When dealing with a statutory right of access to personal information we need to be clear about what we mean. Personal information is defined in a clear and comprehensive way in the Act. The change I am proposing in no way affects access to personal information. What we are talking about here is what information can be said to "relate" to personal information. This is a very important distinction which needs to be made.
There has been much speculation about what information might or might not be affected by the proposed change. The simple answer to these questions is that, as nobody really knows what "relate to" personal information means, nobody, including myself, can say what information will be affected going forward. This is clearly an unsatisfactory position. Members of the public need a clear idea of the type of information they can access. FOI decision makers in public bodies need a clear idea of the type of information people have a right to receive.
The use of the word "contain" rather than "relate to" ties the right of access to personal information to the very comprehensive definition of personal information contained in the Act and will serve to clarify an area which, if left unchanged, carries significant potential for confusion, inconsistency and dissatisfaction for all concerned going forward.
I made this point on Second Stage and I also made it in the Seanad. I am open to suggestions as to how this could be cleared up. The purpose behind this amendment was to clarify matters.
Deputy Burton has spent all her life in the Labour Party. That party is known to be always engaged in conspiracies. In fact some of the greatest events of all time used to be the Labour Party conference when conspiracies were on the agenda and brought onto the floor. Since those on the left spend most of their lives thinking about conspiracies, I can assure the Deputy there is no hidden persuader here. No Government colleague, backbencher, frontbencher or anybody else came to me requesting that this section be inserted in the Act, but what has happened, as a result of the High Court decision, is that this has been made unsatisfactory. When the committee met officials of my Department who dealt with this matter, many Members of the Seanad who were present were a little more reticent than some of the Deputies here and saw some of the difficulties resulting from the High Court decision. The purpose of all this was to clarify and make it easier for everybody to know what was meant by personal information. In putting forward this amendment nobody intended to limit access to personal information.
The Act is now unsatisfactory as a result of the High Court decision. As I said in the Seanad, I have read many High Court judgments in my time, both as a Minister, as a politician and in a professional capacity. If people can decipher for me what is clear in this one, I will bow to their superior judgment on the matter but to date nobody has been able to do so. This was an attempt to clarify a totally unsatisfactory situation which has arisen as a result of that judgment.
It would be interesting to outline for the Deputies the case which gave rise to this decision in the High Court. This is the case of EH versus the Information Commissioner. It concerns an individual against whom allegations of sexual abuse were made. The individual applied, under the FOI Act, to the Eastern Health Board for all records relating to himself, his former partner and his daughter. He also applied to the Minister for Health and Children for all records relating to himself, the Department of Health and Children, the Eastern Health Board, the registered health practitioner, Dr. W, the sexual assault treatment unit of the Rotunda Hospital and the Office of the Ombudsman.
The Department refused a number of records on the basis that they did not relate to the personal information about the appellant, the individual against whom the allegations of sexual abuse were made. These were the affidavit of Dr. W and a number of hand-written notes which were created prior to the advent of the FOI Act and appeared to relate to the appellant's complaints to the Department of Health and Children. The Information Commissioner upheld this decision. Consequently the person against whom the allegations of sexual abuse were made appealed to the High Court, and this is the decision that was given in the High Court in this case.
The judge took the view that while the affidavit - one can guess what the affidavit must have been about and that it was not about the appellant - did not refer to the appellant, it addressed itself to matters in respect of which the appellant had a real and substantial interest, namely the proceedings before the Fitness to Practice Committee of the Medical Council. The judge took the view that the hand-written notes made express reference to the appellant by name and as such came within the ambit of the test that there was a "sufficient substantial link between the requester's personal information as defined in the Act and the record in question.". Consequently the judge found that the records in question should be released.
This case is probably the opposite of those about which the Deputies are thinking, such as the cases of Mr. O'Gorman and others. It would be the polar opposite of what people have in mind or what they might have had in mind. This judgment about what "relate to" means is what is causing all the difficulty and this was an attempt to clear up this matter. When the FOI Act came into operation, information on other matters was to be given from the day the Act came into operation and personal information was to be given from as far back as the person wanted to go. That is the basis of the 1997 Act.
As a result of this decision, the reality is that nobody knows how to interpret the meaning of "relate to" at all and how to get into the mind of the person who created the record, perhaps 35 or 40 years ago. What was in the mind of the creator of the record, which could have been made 35 years ago, might not be about the individual at all; it could be about a totally unrelated matter. As Mr. O'Gorman pointed out in a radio interview, under the 1997 Act his people are not getting information on account of this decision. The RTE transcript of his recent interview on "Morning Ireland" shows that is what he said.
I make it quite clear that I and my officials and the Attorney General are not geniuses and we are not too clear as to how this should be interpreted. This was an attempt to clarify an unsatisfactory situation to make it clear for decision makers as to what should be done.
It is obvious to me from the limited debate there was in the Seanad on Report Stage which I attended, that some Senators, who must have been at this committee and at least got the gist of it, stated that it is a very complicated area and accepted that it was not the intention to limit access to personal information. I also noted last week Deputy Rabbitte stated when he was replying on behalf of the Labour Party that he accepted the bona fides of the Government that there was not an attempt to restrict anything in this area and that it was complicated. That is the gist of what he said. I will not summarise what he said because people can read the debate themselves, but I was in my office and I heard him say that.
This is a particularly complicated area, but it is not the intention of anybody on this side of the House to restrict what is there. I remind Deputies that if we leave it as it is, it is open to massive misinterpretation and lack of clarity.
I am willing to listen to what Deputies have to say. If they want to leave it like this, I am open to persuasion about it. However, I make it quite clear, as I did on Second Stage and in the Seanad, that the position is not clear and this was an attempt to clear up a very unsatisfactory situation. Nobody intended to restrict the access to information of the bodies to which the gentleman who came before the committee referred.
It clarifies the Minister's thinking for us, but the Minister still has not answered the question I put to him. We have had, both in this committee and in the public media, a series of reputable people, including professional people and the Irish Council for Civil Liberties——
One of the people referred to Dr. McDonagh in this area. In her article in The Sunday Times, she accepts this change.
In her evidence to the committee——
The other matters refer to the Bill. I can understand that Deputies on that side of the House are opposed to the changes I am making in the Freedom of Information (Amendment) Bill 2003 but on this matter relating to personal information, it is not the intention of the Government to make any substantial change here to roll back. The intention of this amendment was to attempt to make clear what was relating to personal information and what would be able to be given out under the ambit of personal information.
I can accept in other areas the points of opposition put forward by Deputies in opposing the Bill, but this amendment was not intended to limit access to areas of personal information. If someone can clarify the learned judge's decision, which is the deciding matter and the basis on which the change is being made to clarify this, I will accept changes. If people want to push me further, I have no hang up about this provision. It is a genuine attempt to clarify matters. If committee members wish to leave matters as they are, I am willing to listen to such views also.
The Minister was not at the committee hearings where Dr. McDonagh said she shared the Information Commissioner's concern about this area. I read the transcript early today, and I am sure the Minister's civil servants can find for him the relevant quotation from Dr. McDonagh.
The point, however, is not whether the Minister likes it or whether there are hard cases in this area, and there are of course lots of them. By changing the words from "relate to" to "contain", the capacity of a person to get detailed personal information will be severely restricted when the new Bill comes into law. This is agreed by practically every expert in the field and by a string of lawyers.
The Minister implies that this is not his intention, and the Taoiseach has stated this will not affect access to personal information. That is not the expert view of all sorts of people who have come here and commented to the committee. In terms of linking this to the additional sections in the Bill that deal with information concerning tribunals, the Information Commissioner gave us an example of his concerns about tribunals. He spoke in particular about his concerns in relation to the parents of children who had died and whose organs had been retained. Mr. Fergal Bowers subsequently addressed the committee as part of an NUJ delegation, and he cited the example of the deceased baby, Bronagh Livingstone, in expressing his concerns.
In a certain sense, the game is up. The Minister may have introduced this measure with good intentions of resolving the situation surrounding a difficult and sensitive legal judgment concerning an allegation of child sexual abuse by a parent who subsequently looked for records. We got the details of the case from the Clerk, Ms Hogan, and have all had the opportunity to read about it. It is a very difficult case. However, the Minister's attempts to deal with this case are botched and ill-judged because the net effect of what he is attempting to do is to strike fear and trepidation into the hearts and minds of people who are dealing with the fact that they were abused by elements of this State and are now being restricted and frustrated in their attempts to obtain their personal records.
I am not saying the Minister is not personally well-intentioned in relation to this, and I accept he may have had no ulterior motives. However, the amendment he proposes is bad law, the net effect of which will be that people with traumatic histories will have their rights to information restricted. In most jurisdictions, this type of information usually concerns public servants and people employed in various institutions who wish to access their records and personal information about interviews and so on. This is common. In this country, however, we have an exceptional history in relation to certain people with particular relationships with the State. All their representatives have told us they are fearful about this amending legislation. It does not matter whether the Minister's intentions are good. He is making bad law. One of the reasons we asked for a period of consultation on this was to go into it in great detail. Unfortunately, the Minister's amendment will do a great deal of damage. He uses the example of a difficult case for all of the authorities involved, but that does not make the case for his draconian amendment, and I oppose it.
I thank the Minister for dealing with this case and giving us some insight into his thinking. However, I would dispute his conclusion. We must make a decision that will be in the public interest. In the judge's ruling in this case, he decided that the Information Commissioner was right to refuse to disclose certain files, but in respect of others, he said the commissioner had made an error in law and ordered that some of the files be released. The judge drew a line in a different place to the Information Commissioner.
Significantly, the Information Commissioner is not aligned among those whom the Minister would expect to defend his proposed change. It was the Information Commissioner's change that was appealed and his view that was overturned. Yet, the Information Commissioner does not argue in his submission that this is the right change to make. He infers the opposite, namely, that this is a restrictive change that will substantially close up the records that can become available. The information officer is absolutely correct in that. To convince me the High Court was wrong, the Minister would have to present me with significant new information that its ruling in this case was damaging to the public good. Simply saying it was a sexual abuse case in which it was the accused who sought information does not establish that the High Court was wrong. The High Court was probably right. Reading back over the substance of the case, it seems the court may have been right and the Information Commissioner may have been wrong. The Information Commissioner has not argued otherwise. He has not expressed delight with the Minister for reinforcing a position he took or tightening up what he believes was a wrong decision by the court. Thus, the Minister must produce new information, rather than simply alerting us to the fact that this was a sexual abuse case.
In the words of the Information Commissioner, "A person must establish that there is a sufficiently substantial link between the requester's personal information and the record in question." That is the test that must be decided by the head of a public body, by the Information Commissioner on appeal or, eventually, by the High Court if there is a subsequent appeal. Of course there will always be room for interpretation, and one cannot be absolutely categorical in defining "sufficiently substantial". They are relatively good words, however, and give reasonable direction both to a head of a section and to the Information Commissioner on appeal. The judge in this case referred to that. He said, in his ruling, that "Where the record does not name or has no express reference to the requester, a substantial link will be established if the record relates to something in which the requester has a substantial personal interest," as distinct from something in which he or she has an interest as a member of the general community. This gives quite a degree of clarity as to what the head of a department must look for in making a decision or what the Information Commissioner must look for in the event of an appeal.
The Minister sought to make light of the judgment by saying the judge is re-introducing, as possible issues that could be looked at, the very issues he ruled as not being decisive or determining. That does not make little of the judgment. The judge is saying these factors which led the Information Commissioner to throw out this appeal could be looked at but cannot be viewed as determining. They can be looked at only as secondary issues to assist where there is ambiguity. That is not a bad judgment. It gives scope to interpretation and a sense of direction but it is not being absolutely decisive. Judgments have to be made on these matters but it is clear that the Minister's decision to haul the line all the way back to "contain personal information" will undoubtedly undermine the position of people who are seeking personal records where the State damaged them during the course of some service that was supposed to be delivered. There is no doubt that this is a highly restrictive decision. We have not established to my satisfaction that this court case was a wrong judgment damaging to the public interest. Unless the Minister can satisfy me that is the case, leaving well enough alone with the clarification that the judge has given is not a bad end position. The Minister has not convinced me and I do not know whether he has convinced other members of the committee. That is not being political but having read the judgment and having listened to the Minister, I am just not convinced. I agree with Deputy Burton that this may be a case where if we had another month or two to obtain high level legal opinion we might be able to end up with words that would be better than what the judge has given. However, without that, I am happier to stand by the judgment of the High Court than by an interpretation by the Minister and his officials.
It is not too glib to say the Minister's arguments are leading him to a position where he is throwing the baby out with the bathwater because that is what is happening. It is very regrettable. On the one hand, the Minister is talking about the ambiguity of a sufficient, substantial link and how that is proven, but on the other hand what he is doing by pressing his amendment is removing any hope of establishing any such link if that amendment is passed. There will be no basis on which a link can be established if the word "contain" replaces the words "relate to". The Minister is closing down even the option of trying to establish a sufficiently substantial link. That opening is very important for many people; not only the apparent number who have presented their cases to all of us in the recent past, but to many others at this point in time. I am a member of a health board and I know of cases where the specific personal records of people - and women, in particular, to whose cases I refer - who were patients in hospitals in this jurisdiction have either not been kept or have been destroyed. In establishing their cases, these women are depending on other means in order to prove that they were victims of malpractice within hospital institutions in the State. There will not be records that may directly and specifically refer to the individual woman who has been brutalised. By virtue of this amendment, the Minister will potentially close off the opportunity for such people to demonstrate with reasonable potential the ability to successfully press their cases. The Minister will be denying them the oxygen of critical information. The Minister has to examine the ramifications of his proposals. There is no question but that the Information Commissioner's note in relation to the difference between "contain" and "relate to" is absolutely sustainable. The Minister recognises and understands it too. It is not beyond the ability of any of us to judge whether specific information relates to any particular applicant for access to information. The notion that it is an exercise beyond the respective gifts of those who were entrusted on behalf of the public to control areas of governance both at central and local level, is incorrect. Many examples could be cited but this is one of the substantial aspects of the Bill that causes real concern. In the light of all the information that has been provided, I appeal to the Minister, even at this late stage, to withdraw section 4 as it opens up a vista for so many people that will deny them access to justice into perpetuity.
I think I have spotted a trend here - the length of the Minister's contribution is in direct proportion to the discomfort he feels about the argument he is making. He shares that trait with the British Prime Minister at the moment. The Minister is working hard to convince us but he is failing to do so. We are familiar with the circumstances of the court case and we do not accept the application the Minister is making in this regard. If the case is being made that there is a difficulty in the wording "relate to" or "relating to" why has the Minister not proposed other amendments in the Bill where that exact same phrase appears in several other parts of the Principal Act? If there is a problem with the phrase "relate to" why is it still being maintained in other sections?
It seems the Minister is seeking a solution that basically says the best way forward is to close it down and stop all information. I am familiar with cases similar to those mentioned by Deputy Ó Caoláin. There are many complicated case histories in the medical profession which could be closed down completely. The institutions constitute one issue but we must also remember that in future the Bill will apply to difficulties concerning nursing homes, hospitals, orphanages, the medical profession and other strong vested interests in society. If we are to make such a dramatic change to the openness and transparency of the information age in Ireland we should really have more than one example from which to quote. Just one example has been picked and while it is a good one, considering the ramifications of what we are doing with this section, we need a little more evidence than that. I support the other members in saying that we should get rid of this section completely until we know how much it will affect people's lives. Are there many more similar examples, barring the ones the Minister has just quoted?
I still have not heard any suggestions as to how the High Court judgment can be clarified for decision makers. The High Court judgment is more or less unworkable but if Deputies want me to leave the section as it is, I will do so.
I will put the question then.
Is the Minister saying he is withdrawing the amendment?
Yes, he is.
Yes.
So we are leaving the Act as it was?
I am putting the question which the committee will answer in the negative. In order that people understand what we are doing, if I put the question "That section 4 stand part of the Bill" and the answer is in the negative, the section is deleted.
Yes.
Question, "That section 4 stand part of the Bill", put and declared lost.
Section 4 deleted.
I thank the Minister. I have had many ideological disputes with him in my day. I know he is not someone who wants to hide information. I thank him, especially on behalf of organisations such as One in Four and others who spent time before the committee. It is a pity the rest of the Minister's approach has not been as open as it has been on this issue.
It is appropriate that we acknowledge the Minister's response to the case put by Opposition members.
And Government members on Second Stage as well.
Yes.
I have acknowledged that, Chairman.
On the record.
It is very important and I have no doubt the Minister's decision will be welcomed just as generously by groups such as Relatives for Justice, Parents for Justice, survivors of child sex abuse, SOCA, and all the many other groups for whom this amendment spelt serious consequences. I thank the Minister formally. As a committee member, it has made the exercise all the more worthwhile.
To be equally understanding of the Minister's position, we may well find ourselves back here again in two or three years to examine further cases and make necessary amendments, though I hope not.
I thank the Minister. He has made the right decision. We will have a new Information Commissioner and experience will be built up over time. If we find a clearer definition is needed for "substantial and sufficient", I am sure we can return to that subject. We will certainly accommodate a return to it, but in the context of broadly liberal access to records for people of the type who presented the case to us, the Minister has made the right decision. There can be a period of reflection to see if further amendment is necessary. I am convinced the amendment the Minister tabled was wrong, albeit made in good faith. He has made the right decision by changing his mind. It is a measure of the strength of an individual to accept that perhaps he is not always right and I congratulate the Minister on that.
I acknowledge the accommodation the Minister has made in not pursuing the amendment. In my short time in the House, it is my first experience of such an accommodation. I look forward to the Bill being examined in other aspects. We must admit that this was the most controversial aspect and caused the greatest disquiet among groups outside the House. I am satisfied the Minister has taken on board the reservations of many on the Opposition and Government benches. I hope other aspects of the Bill can be examined as critically.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
I do not want to appear ungracious but I have a question on this. This is a legal provision to allow people withdraw freedom of information requests. A point has been put to me by someone with whom I worked and who is a substantial expert on this that there is a danger that this could be used to force requesters to go outside the Act for information. A public body could then supply records to the requesters but omit sensitive material. It would not have to inform them it was omitting the sensitive material or give reasons for so doing.
On the face of it, I can understand why there should be a formal mechanism to withdraw requests. That happens all the time in practice because people are told they cannot be given every detail of, for example, Garda overtime for the past ten years or something similar because it is impossible to obtain. For the most part, guided by the decision makers, people withdraw or significantly amend the requests. Perhaps the Minister through his civil servants could give us the benefit of his expert advice on this.
Section 5 amends section 7 of the principal Act to provide that a member of the public can withdraw a freedom of information request. There are equivalent provisions in sections 14 and 34 of the Act. This is a sensible provision that will ensure consistency with similar provisions at the review stages of decisions. There is a mechanism to withdraw a request when it is at the appeal stage with the Information Commissioner but no such mechanism exists before that. It was forgotten about when the Act was being drawn up. This is all this section does.
I know it is done informally all the time.
No, there is no legal mechanism for so doing. It was forgotten about when the Act was drawn up. All we are doing is putting that mechanism in place.
What about the danger of people being forced to go outside the Act?
For what?
For the information, the full detail of which they may not receive. It is a technical question and depends to a great degree on the attitude of the decision maker in terms of operating the spirit of the Act. I understand the reason for the inclusion of the mechanism for withdrawing a request and do not have a problem with it, just with the consequences of it.
A person may withdraw a request. He or she is not forced to withdraw it. He or she may do so at any time before a decision is made. This is only a tidying up measure.
I am aware of the principle but perhaps I can obtain more information on it for Report Stage.
There is no more information to give apart from what I have given.
Okay.
Question put and agreed to.
SECTION 6.
Amendments Nos. 17 and 18 are cognate to amendment No. 11 and all may be discussed together by agreement.
I move amendment No. 11:
In page 6, paragraph (a), line 22, to delete “, 27(4)”.
Where a request for information is refused, the standard practice is that the reason for refusal is given and the basis in the Act on which the refusal relied, that is, the provisions of the Act under which the request was refused, the findings relevant to that decision and the particulars of the public interest that caused the decision to be refused.
As I understand the amendment to the principal Act, the Minister is saying that the spelling out of these reasons would not be granted in a series of new areas. These include commercial confidentiality, personal information and information given in confidence. I can perhaps see the reason for cutting off explanations where information was obtained in confidence or where there was personal information, but I cannot see why the reasons would not be spelt out for a refusal on the grounds of commercial sensitivity.
My amendment removes commercial confidentiality from the ambit of this new exclusion. I do not see why we should give this additional protection. Where a request is refused, the head of the Department should be quite happy to state the provisions of the Act on which he or she relied, namely, commercial confidentiality, the findings that support that and why this was in the public interest. This would not release the commercially sensitive information but would give the background as to why a refusal was made.
I cannot see why we would propose to make this extension. As in other sections, I would like to hear from the Minister evidence of cases where this has posed a problem that might justify the amendments he makes.
I will not accept these amendments which would remove provisions to enable a public body to refuse to confirm or deny the existence of a record containing commercially sensitive information. I have already outlined that the reasoning behind these provisions is to ensure that information which is exempt is not revealed in response to a freedom of information request, especially one which is very precisely worded. For example, company A is setting up in opposition to company B and enters into confidential discussions with Enterprise Ireland, during which certain trade secrets of company A are given to Enterprise Ireland. The managing director of company B sends a precisely worded FOI request to the head of Enterprise Ireland for any records that he suspects to be trade secrets of company A. The request is refused under section 27 on the grounds that it seeks information commercially sensitive to company A. However, there is no firm basis in section 27 for Enterprise Ireland to refuse, confirm or deny that it holds such records. Clearly revealing that records of this significant nature exist would carry a risk to company A. I am satisfied these prudent provisions arise out of genuine concerns expressed by bodies in the enterprise sector.
I do not follow——
I will make it simple for the Deputy. If he submits a specific request to a public body for specific detailed information about a particular company or individual, information that is commercially sensitive, the request could be phrased in such a way that the officer saying such records exist but cannot be given out, would in itself be commercially sensitive. That is a fact. It also happens in other arenas with requests for personal information and we have tabled amendments dealing with that also. Members should accept that precisely worded requests may result in the person making the decision giving the game away by confirming the existence of certain information. That is what this change is about.
Has Enterprise Ireland specifically requested——
No, that is the body I used as an example.
These are the bodies we are trying to protect, as well as people with patents and so on, who are at the leading edge. Has Enterprise Ireland, the IDA or any other agency had experience of these sorts of problems or is this speculation and someone trawling the Bill decided to throw it in? I am uneasy as there does not seem to be any evidence supporting these changes and I suspect that there will be a lot of cases where commercial sensitivities will be the reason given. We need to be told up front.
We have learned of these problems from the FOI networks, where such problems have been discussed.
I appreciate the Minister and the Civil Service may have genuine problems with this section and there may be difficulties with this under the different headings. There were four categories of sensitive information under the existing Act and the Minister is seeking to create three new categories of sensitive information. Is the Minister prepared to subject these changes to a public interest test on Report Stage? Information may be sought under these headings and there is a perception the Minister might like to comment on regarding the existing categories that public bodies unreasonably, in some cases, use this section to refuse information. A public interest test where commercial or private information could be used in the example he gave, where damaging information is sought. What if someone looked for the employment record of a sibling of a Member? Why should someone be entitled to that? I can see the reasons behind this amendment but would the Minister be prepared to make this subject to a public interest test? I see the reasons but I am concerned it is unqualified.
The question of commercially sensitive material is a sensitive one. I mentioned a situation on Second Stage regarding the tendering of products to Westmeath County Council, a situation which might also apply to the Minister's county. A plant nursery put in a freedom of information request to the local authority seeking the tenders for all products in that area - trees, shrubs and so on - with details of prices and amounts over the last five years. The nursery is looking for commercial information.
If two people are tendering for a job one should be able to see the other's tender so he or she can be in a better position later. However, I can see why the example I gave would be refused. The Minister should explain refusals on commercially sensitive grounds further.
Deputy Burton mentioned a public interest test and this defence could be used for not revealing that the best tender got a particular job. A person may feel a particular selection process is unfair but the commercially sensitive defence could be used to block a request for information in that case. There is a danger of throwing out too much here even though the Minister has made a successful argument of certain cases. It might be better to ring-fence this and we would then be in a better position to deal with this.
It is interesting to consider a public interest test and perhaps "relate to" rather than "contain" could be used here. In the case of specific tenders unsuccessful applicants should be entitled to specific information rather than trawling through commercial information.
This is a further restriction. With section 6 we have a situation where information is being concealed which is being sought when a case is already decided. Why does the Minister feel that necessary? I put the charge again that we are containing information here. I will oppose section 6 because this is unnecessary. Why would we refuse information subsequent to a refusal?
In relation to refusal to confirm or deny, the provisions referred to in sections 26, 27 and 28 are all subject to the public interest test. If the public interest says the record should be released one cannot invoke the right to refuse to confirm or deny.
That, ostensibly, is the reply that the public interest is the——
The public interest sections in the original Act are sections 26, 27 and 28.
Does the public interest apply also to the confirming or denying of commercial——
Yes. The public interest says the records should be released and one cannot invoke the refusal to confirm or deny. The first test is the public interest and then one cannot——
There are two public interest tests?
Yes, well, if you want to put it like that. There is one public interest test. The practice of allowing to confirm or deny, which is what the Bill is about, cannot be invoked if the public interest deems that it should be released. In the case referred to by Deputy McGrath it depends very much on whether the deciding officer will show how he deems it to be. Presumably, he will say it is not in the public interest——
What would be the Minister's comment on that case if he were the deciding officer, for instance?
Well, luckily, the Act just allows me to appoint deciding officers in the Civil Service, so I do not make those decisions. What would be Deputy McGrath's decision?
I would, most definitely, say the company should not get documents to enable it to trawl for information. If it had tendered and had lost a tender it would, perhaps, be entitled to see the winning tender for that competition but under no circumstances should it be entitled to information for a trawl like that.
I know Deputy McGrath is a wise Deputy.
The Minister, earlier, was happy to trundle out some of the statistics from his own Department's report. In relation to the public interest defence, can the Minister tell us how often is that invoked?
The question is whether it is in the public interest or not. That is one of the bases, in the whole original Act, on which information is given out. So, I do not understand the Deputy's question. It is not used as a defence. It is used as a reason for giving it out.
Looking at section 27(3), I do not think the Minister is right in what he is saying about the public interest test. It only applies to the initial refusal on grounds of commercial confidentiality. The public interest test does not also apply to the decision to refuse to confirm the existence of the record.
That is what this amendment is doing.
No, I think the Minister is making it a mandatory exclusion.
That is not what I am doing.
Maybe I am reading it wrongly but it does not seem that 27(3) refers back to section 8 (2) (d), which is what we are amending.
I am not doing that.
No, the Minister is not doing that but that is the problem. He is giving a blanket refusal to disclose——
No.
He is not? Perhaps the Minister could explain that. It seems to me he is.
I believe I am not.
We need more information.
That is the information I am giving the select committee. If there is any additional information I would be happy to give it to Deputies.
Section 27(3), which is the one upon which the Minister is relying, says, "Subject to section 29 [which is another thing] "subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would be, on balance, better served by granting than refusing the request". It does not refer back to a similar public interest test in section 8(2)(d), where the Minister is introducing this not giving the information——
The Deputy is making it quite complicated because in amending the Principal Act - and it is hard to see what the amendments make of the principal Act when it is put like this and what section 6 is about - that is not what is happening.
Section 27 of the principal Act is amended by section 20(b) by inserting the following subsection after subsection (3) which states:
(4) A request under section 7 relates to a record to which subsection (1) applies but to which subsections (2) and (3) do not apply or would not, if the record existed, apply".
Subsection (3) is the public interest test.
The Minister is right. He is providing this in section 20 of this Bill.
Yes.
Amendment, by leave, withdrawn.
Amendment No. 12 is a drafting amendment. Amendment No. 19 is cognate and both may be discussed together.
I move amendment No. 12:
In page 6, paragraph (a), line 25, to delete “paragraphs”.
These amendments are necessary to remove duplication where the word, "paragraphs" appears in line 25 on page 6 and in line 50 on page 7.
Amendment agreed to.
Question, "That section 6, as amended, stand part of the Bill" put and declared carried.
SECTION 7.
I move amendment No. 13:
In page 7, to line 2, to delete paragraph (a).
The Minister is seeking to amend section 10 of the principal Act and to put in a replacement for section 1.
I do not accept this amendment, the effect of which would be to make it very difficult for public bodies to be able to refuse requests which would involve substantial and unreasonable interference with their work. The potential for section 10 (1) (c) of the main Act to be construed as precluding the refusal of a request which involved a substantial and unreasonable interference with the work of a particular area or section of a Department, as opposed to the work of the Department generally, was highlighted by the Civil Service users network in a report on the operation of the Act conducted in 1999. Essentially, the way this subsection is worded could mean that an entire Department would have to shut down before it would be possible to refuse a single FOI request on administrative grounds. This amendment, among others, is an attempt to clarify that substantial and unreasonable interference in work, be it the work of a particular unit or section, can constitute grounds for refusal of a request.
I emphasise that the threshold for this section to be invoked remains very high. The disruption must be substantial and unreasonable before a request can be refused. Any such refusal will be subject to appeal and review by the Information Commissioner.
I accept that the Minister's amendment is not unreasonable. I withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments No. 15 is an alternative to amendment No. 14 and both will be discussed together by agreement.
I move amendment No. 14:
In page 7, to delete lines 8 to 10.
The Minister is seeking to look at the previous behaviour of people in refusing requests for information. The case offered to justify it is that there are people who make serial requests. The Information Commissioner made the case that the Departments concerned were not really using the powers relating to vexatious and frivolous requests which are already in the Act. He was of the view that making this additional restriction was not, necessarily, justified on those grounds. In that sense, I am suggesting that the Minister needs to justify to the committee why this change is necessary.
My view is that each request should be judged separately. There may be a variety of reasons a person may have failed to make a payment in relation to a previous unrelated request. To introduce a lifelong denial of access because of any failure on the part of the person making the request is a discriminatory practice, it does not aid the good working of the intent of the Act and is a retrograde step.
As Deputy Bruton said, if there is a pattern presenting of vexatious or frivolous requests as has been reported to us earlier in these deliberations, that is how one would deal with such. There may well justifiable or understandable and quite sustainable arguments to explain why a person may not have paid at any point. It is unacceptable to now introduce an amendment to the Bill that would mean because of that, a person will not have any future access. It is a further retrograde step within the overall amending Bill. I oppose the amendment.
In the previous hearings we were given an example of some individual who had made a very large number of requests. I think it was the Information Commissioner who had given the example. It was queried whether this was a good example of someone who was being unreasonable or vexatious. The further examples given of the questions being asked even though they did not directly relate to the person concerned were not unreasonable questions. A provision such as this would lead into a very grey and difficult area. One could try to get at an individual even though the individual in individual cases might be asking very reasonable questions.
My other serious difficulty is that I do not see it being applied in other areas of law, for example, being applied to rogue builders in relation to planning permissions. If it is a principle of law then it is a principle of law and I would like to see it being more consistently applied. The Information Commissioner said that the existing provisions on behaviour that is deemed to be unreasonable or vexatious have not been properly tested and I agree with his view. The powers already exist in the Act and the need to bring about the changes are not there. On those grounds I oppose the section. We should not proceed with this provision.
On a point of clarification, are we also taking amendment No. 15?
We are discussing amendments Nos. 14 and 15 together. We will vote on them separately.
I note that in the Bill as it stands if a person fails to pay the charge for information requested he or she is debarred for life from making any further requests unless or until he or she pays the charge. This could be very harsh and we suggest that there be a time limit of twelve months after which unpaid bills are written off.
The purpose of this amendment is to provide a statute of limitations for persons who do not pay the charges under the Act rather than bar them for life. There should be a cut-off point after which a person could make a new request even if he or she had failed to pay previous charges. The Minister may not agree with our proposal but we believe it would be fairer to impose a time limit. It would allow for those persons who could not afford to pay, since there is no provision for those circumstances in the Bill.
I will not accept the amendment which would preclude a public body from taking into account a previous failure or a persistent failure on the part of a requester to pay a fee or deposit properly charged under section 47 of the Principal Act.
The payment of a fee is a requirement under the FOI Act and it is only correct that a failure, or previous failure, to pay a fee should constitute grounds for refusal of a request regardless of when that failure occurred.
The relevant provision is contained in section 10 of the principal Act. Section 10 is a "may refuse" rather than a "shall refuse "exemption so the head of a public body will continue to be able to exercise discretion before deciding to refuse a request because a previous fee owing to the body had not been paid by the person making the request.
The Minister interestingly in one breath spoke of previous failure, and oblique, persistent failure. There is a marked difference between a previous failure and persistent failure to pay fees. The Minister is lumping them all together. I do not think there is any opposition to a proposal to exclude persistent failure where a pattern is clearly established as in the earlier references to the vexatious inquirer. It is wrong that a person who has one previous failure should be treated in the same way as a person who has persistently failed to pay. It is a very dangerous equation to make because these people are not equals. There may very well be sound reasons a person has not paid the charge in a given case, even though I cannot cite any case to the Minister now. To continue to include this amendment in the Bill means that the Minister is tarring everybody with the same brush. It is not applicable. Following this debate people will come out of the woodwork to give examples of reasons they may not have paid. I appeal to the Minister to exercise caution. This amendment is taking us once again in the wrong direction and I oppose it.
The deciding officer has discretion to take all factors into account particularly if there are sound reasons a person who has made a request failed to pay a previous fee.
Might a Minister intervene?
No.
There is a very good example in this House where a Deputy put in a request under freedom of information legislation and when that was being processed the Minister of the Department involved managed to get a letter that this Deputy had submitted on an earlier occasion and released it to the media.
I ask the Deputy to wait a moment. A Minister can decide at any time to release letters to a newspaper and he does not need the freedom of information law.
Yes, I know he does not need the Freedom of Information Act to do so but he was using the information that was gathered and when the material was ready a bill was sent to the Deputy for nearly €800.
Did he pay it?
He did not. It was subsequently modified and he paid about €120.
But he paid it.
He paid about €120. Will that Deputy be blacklisted?
No, Deputy, because he paid up.
He modified his request but in this case the Minister was able to use the material that was garnered and he had much faster access to the material. That should entail a modification of the cost. Is this the manner in which requests to the Minister's Department should be treated? Are all FOI requests brought to the Minister's attention?
He is supposed to be informed.
No, is the answer to that question. I am not informed. A weekly list is produced of FOI requests for that week and that is all I see.
Does it give details of the request and who is requesting the information?
It gives the name of the person requesting and a brief synopsis of the subject of the question. It names the deciding officer or the relevant head of section and that is all I see.
Is the Minister telling me he would not be the first person told of a very contentious request which might be made?
No, I would not.
Someone would be slipping up in his office.
While Deputy Ryan may not have been in the Dáil for a period, he was definitely around in 1997 when the Bill was passed. The basis of the Act seems to have passed over his head even though it was introduced by his party, which claims credit for it. The whole basis of the FOI Act is that the Minister does not have any say good, bad or indifferent on whether the information is released.
That is the basis of it.
The person appointed by the Minister is the deciding officer. The Minister has no say on whether information is released. I gave the example earlier in the debate of a deciding officer in a Department who decided in a particular way on a matter on which most people would agree his view was somewhat eclectic. However, that is the way the Act is. These things are not automatically brought to the Minister's attention. Many items have been released from Departments, which have caused a great hullabaloo in the newspapers, and the first the Minister knew was on reading it in the newspaper the following morning.
Did the Minister miss it on the list going through?
No, when the decision is being made, the Minister does not know what will be in it. He has no say in that either. After it is released the Minister can look at what has been released.
Could the Minister not ask for similar material? He does not need the FOI. As it is the Minister's Department, he gets to see it on a weekly list of all requests. Is the Minister not free to ask his secretary to get the same information so he can have it before it is released under the FOI Act?
I have enough to do without having to worry about all those things.
A certain Minister did so and was able to use it beforehand.
That was terrible. I suspect he must be a politician.
The minister for everything.
It is very easy for the Minister to say we can leave that open to the discretion of the deciding officer. It would be much more beneficial to have particular circumstances contained in the Bill so that everyone can be clear on it. There will be certain areas where it will be left to the deciding officer because he has a particular role as defined by the Minister. In the case of non-persistent requesters or people whose circumstances are such that they cannot make the payment at that time, there is merit in our amendment and the Minister should accept it.
In normal circumstances I would accept the Minister's position because ultimately it can be appealed to the Information Commissioner. However if it will take three years for the Information Commissioner to reach a decision on the appeal, the amendment should be more tightly drafted.
That is not happening. When discussing an earlier amendment I explained that I gave more resources to the Information Commissioner last year. He has used resources in a sensible way by keeping current requests up to date and to deal with the backlog.
Will an appeal under this section be dealt with promptly?
The commissioner got extra resources in April 2002. He has organised his office to deal with current items and keep them up to date.
It is not so bad. However it is loosely drafted. Arguably under a strict reading of the text, even if the request was withdrawn when the fee was presented, it could still be refused in the future because the fee was not paid on request.
The Minister invited critical focus with his response. It is important to have a differentiation between a previous failure and a persistent record of failure. I am sure the Minister recognises there could be instances where there may have been a previous failure, but to now determine that such a party will be excluded indefinitely is not appropriate.
I get the Deputy's point. It could be suggested that people were in a particular place but when they were sought they could not be found there and no evidence could ever be given. If they only did that once that would be acceptable but if they did it on a number of occasions that would be a considerable offence. Perhaps Deputy Ó Caoláin has a particular case in mind.
No, but perhaps the Minister has.
I do.
In that case, he should spell it out. We are all well able to take whatever he has to offer.
Is the amendment being pressed?
Yes.
Amendment put and declared lost.
I move amendment No. 15:
In page 7, line 10, after "requester" to insert "made within the previous 12 months".
Amendment put and declared lost.
Question, "That section 7 stand part of the Bill" put and declared carried.
Progress reported, committee to sit again
The select committee adjourned at 8.37 p.m. until 11.10 a.m. on Wednesday, 2 April 2003.