Select Committee on Legislation and Security díospóireacht -
Tuesday, 25 Mar 1997

SECTION 21.

Ms O’Donnell

I move amendment No. 22:

In page 29, subsection (1), to delete lines 26 to 29.

I am proposing to delete paragraph (b) in page 29 subsection (1). This paragraph is a vague, subjective catch all phrase. It is similar to subsection 10(1)(c). A public body could rely on it if it could not bring itself within one of the more clearly defined exemptions.

The proof of this legislation will be how the exemptions are used by the various bodies. It is laudable legislation in that it provides for a right of access to information. However, we must look at the menu of exemptions which could drive a coach and four through the ethos of the Bill.

This paragraph allows a public body to refuse access to a record if disclosure "would have a significant adverse effect on the performance by the body of any of its functions relating to management". That is a very wide exemption and this is in addition to exemptions for the deliberation of public bodies in section 20, the preparation for negotiations by those bodies in section 21, commercially sensitive information in section 27 and information obtained in confidence in section 26. This paragraph could be used to justify a refusal to disclose information which would shake public confidence in the management of a public body thereby causing a significant adverse effect on the performance of the body of any of its functions relating to management.

Let us bring reality into these deliberations and consider, for example, the disclosure by the BTSB that plasma obtained from patient X was used to manufacture anti-D after she had been diagnosed with infective hepatitis. If a request was made for that information by a Minister or anyone else the BTSB could refuse on the basis that its disclosure would "have a significant adverse effect on the performance by the body of any of its functions relating to management". There are enough other exemptions. It is an unjustifiable position for a body to take. As I said in relation to previous catch all phrases, to say that it is too much trouble or that it would involve a disproportionate amount of work for the public body is an excuse. We can deal with that and the Minister indicated she would do so.

However, here is another exemption. The organisation can claim that the disclosure would have a significant adverse effect on the performance by the body of any of its functions relating to management. This is a classic opening for any body which did not want to release a public record of importance.

The Minister should remember that we are not talking about inconsequential information. All these matters where disputes will arise will relate to controversial information. Public bodies will not go into a tailspin trying to use these exemptions in relation to innocuous information. Where information is controversial and where it has the capacity to bring down Governments or cause trouble in any of the bodies covered in this Bill, that is where these exemptions will be used to avoid giving the information. We must be very careful.

I can see the hand of the Department of Justice all over this Bill. It has got this far no thanks to the Department of Justice. The Minister said the Official Secrets Act, 1963, is owned by the Department of Justice. This Bill has been diminished substantially even before it got to the drafting stage by the impact of the Department of Justice and the culture of retaining rather than giving information which has grown up in the public service.

Paragraph (b), which allows a public body to refuse to disclose information if it would have a significant adverse effect on the performance of the body's function, is a convenient excuse. We should limit the exemptions as much as possible. The purpose of my amendment is to draw attention to the danger of all these exemptions which drive a coach and four through the ethos of the Bill.

Mr. L. Fitzgerald

I support Deputy O'Donnell's amendment. What is evident here is an attempt in the Bill to assert the right of the public body to secrecy over the right of the public to know. A fundamental right is being trampled on because it puts the right of the public body to defend itself against adverse effects of disclosure before the right of the public. Deputy O'Donnell is right. The Bill tramples on a fundamental democratic constitutional right. If this Bill is to be significant and herald a defining moment in the evolution of the rights of the public to access information, we are at a historic crossroads. I see this as even more significant perhaps than Deputy O'Donnell because to empower a public body to refuse an individual or group the right to access to information solely on the criterion that the availability of that information will have an adverse effect on the performance of that body is to subvert the right of the individual to a role subservient to that of the public body.

I am baffled as to how a Minister could put forward such a subsection because the guiding principle of this Bill should be to promote the safeguarding of the rights of an individual and not of the public body. Maybe my interpretation is incorrect but this is a central defining point in relation to the purpose of the Bill. The Minister is subverting the right of the individual to that of the public body and that runs contrary to the intended principle of the Bill.

Chairman

Will the Minister give examples of the type of information which the section seeks to protect?

Ms E. Fitzgerald

Industrial relations is one of the areas mentioned. If a public body set out its negotiating stance and its bottom line, it would not publish them in advance of undertaking negotiations. If it was tendering for a contract for a particular building it would not give out the bottom line in advance because that would make the tendering process meaningless. That is the kind of management function covered in section 21(1)(b).

The intention of this section is not to trample on the rights of individuals and the information commissioner is an independent means of appeal to ensure that none of these provisions can be used wrongly. The section states that the public body must be able to show that damage to the management of a particular function could arise in the release of the materials. It is not that this is material about the management but it would have to show that knowledge of this information would result in actual damage. Second, notwithstanding that there is damage, there is the greater public interest. In the case of the blood bank example to which Deputy O'Donnell referred, the greater public interest would be in giving the information about the particular infection notwithstanding the damage to the public body. At the end of the day, the arbiter will be the information commissioner, not the individuals concerned.

Provisions on these lines is a standard feature in freedom of information legislation abroad and has worked without problems in those jurisdictions, and it worked particularly well where there was an effective appeals system. This particular wording is taken from the Australian legislation and it has not caused the problems or fears which Deputy Liam Fitzgerald raised. Indeed, similar provisions appear in section 6(1)(b) of Senator Roche's Freedom of Information Bill. It is a standard operational provision and there are sufficient built in safeguards in the appeals process and in the provision under section 21(2) that the public interest must come first. If the public interest in disclosure outweighs the merits of protecting the management function of the public body, the public interest comes first. I appreciate the concerns people have raised and I will look again to see if we can fine tune it or deal with the points raised on Report Stage.

Ms O’Donnell

The public body is already fairly well served by a range of exemptions. Section 20 allows it to be exempt from disclosing information if it would affect the deliberations of public bodies and section 21 provides for another exemption where it would affect the preparations for negotiations by the public body. Commercially sensitive information and information obtained in confidence is also dealt with. The exemptions are so numerous at this stage that it is hard to imagine to what sort of information there will be an entitlement. It undermines the original right we are trying to put in place.

It seems that, in practice, the Bill will be pitched in favour of the body as distinct from the public. The Minister must go through all of these exemptions. If this one is bona fide, I think it is already dealt with under commercially sensitive information or the preparations for negotiations by the public body. It leaves so many loopholes for the body to retain information or refuse to disclose information. We should fine tune the Bill before Report Stage so that there is not such a huge scope for undermining the original purpose of this Bill, which is to create a primary right which comes before that of the body to retain or refuse to disclose information. I ask the Minister to review this before Report Stage because it is vague and subjective. Given the number of other exemptions, I see no justification for its retention.

Mr. L. Fitzgerald

Section 21(2) should precede anything that follows section 21(1) if the primacy of the public interest is to be upheld. If the public interest is to be given primacy anything that follows regarding right to refusal or invocation of the protection of the public body should be subservient to it.

Chairman

The Minister indicated she would examine this matter.

Ms O’Donnell

I will be putting down the amendment again on Report Stage when it can be pressed to a vote.

Amendment, by leave, withdrawn.

Section 21 agreed to.

Sections 22 to 25, inclusive, agreed to.