I am considering tabling an amendment to this section on Report Stage to tighten the wording so that the minimum amount of information will be excluded from the scope of the Bill.
SECTION 46.
Question proposed: "That section 46 stand part of the Bill."
Question put and agreed to.
Sections 47 and 48 agreed to.
I ask Deputy O'Donnell to move amendment No. 27.
I am conscious that we have to go the Dáil to vote on the hepatitis C issue so rather than moving this amendment, perhaps we should adjourn until after the vote.
I propose that we adjourn the meeting. The Minister has indicated that she is required in the Chamber from 7.30 p.m. until 8.30 p.m.
Is it possible to discuss the First Schedule of the Bill now and discuss Deputy O'Donnell's amendment after the vote in the Dáil?
We cannot do that on Committee Stage.
Amendment No. 27 could cause problems in terms of the Archives Act. However, in light of the concerns expressed, I will table an amendment on Report Stage to amend section 15(5), which deals with the preservation of records, to provide for the involvement of the information commissioner and Director of the National Archives in framing these regulations. Perhaps we could discuss it further on Report Stage.
I thank the Minister for her comments. However, I am not only anxious about preserving documents but about making it an offence for a person to wilfully withhold any public record which may be required to answer a parliamentary question or to comply with a ministerial order for information.
We will discuss the amendment when we resume at 7 p.m.
Sitting suspended at 6.45 p.m. and resumed at 7 p.m.
NEW SECTIONS.
I move amendment No. 27:
In page 56, after line 51, to insert the following new section:
"49.—(1) Every public body shall preserve a record for a period of not less than 10 years after such record is created or comes into the possession of such body, whichever shall be the later.
(2) Where a request is made under section7 in respect of a record which was created or came into the possession of a public body more than 10 years before the request was made, a public body shall preserve that record at least until the request is granted or, in the case of a request which is not granted, for a further 2 years.
(3) A person who conspires at or wilfully effects the destruction of a record in contravention of the preceding subsections shall be guilty of an offence under this section.
(4) A person who is convicted of an offence under this section shall be liable
(a) on summary conviction, to a fine not exceeding £1,000 or to a maximum of 9 months imprisonment or both;
(b) on conviction on indictment, to a fine not exceeding £7,500 or to five years imprisonment or both.".
The first part of this new section creates an obligation on public bodies to preserve records for at least ten years. If a request is made for a record which is more than ten years old, the record, it is argued, must be preserved until the request is granted, or if refused, for another two years. The idea is that the record should not be destroyed until all avenues of appeal have been exhausted. The Minister of State indicated that the mechanics of this would need fine tuning, which I accepted. The creation of a duty to preserve records is sound in principle. This amendment creates an offence of failing to comply with the requirement.
The second part of the new section provides that the head of a public body, such as a Minister, may by order direct that no records held by a public body which relate to a matter specified in the order shall be withheld. If an expert group is established, such as that set up by the Minister for Health to look into the hepatitis issue, the relevant Minister can make an order under this section imposing a duty on officials to co-operate with such a group or inquiry. As we know in the hepatitis C case, there was a failure to co-operate with the expert group established by the Minister for Health. I am trying to give a relevant example of where this power would come into play. It is necessary to outline a duty on the public body to co-operate if the Minister makes an order directing that a matter specified in the order shall be withheld. The amendment makes it an offence for a person to wilfully withhold a record held by a public body where, to the knowledge or belief of the person, the record may be required to assist in the answer of a parliamentary question because to do so would be a breach of the duty to co-operate.
These amendments give the Minister an element of clout so that a body is obliged, by the terms of the Bill, to co-operate with the release of information. I hope the Minister of State understands the objective of the amendment. We have had experience of a public body being extremely unwilling to co-operate with requests for information from a body established by the Minister and the Dáil. The information ultimately came into the public domain by way of High Court discovery of documents.
This is an opportunity to provide the legislation with clout. The amendment imposes a duty on a person within a public body to comply with a direction by the Minister, who has made an order under the Bill, to disclose information, and failure to comply with that order is an offence which is punishable as outlined in the amendment.
I appreciate the Deputy's point about destruction of records in amendment No. 27. Section 7 of the Archives Act, 1986, already requires the retention and preservation of records unless their destruction is authorised by the National Archives. Under section 15(5) of this Bill the Minister for Finance will make regulations regarding record keeping and so forth and, in light of the points made by the Deputy, I propose to strengthen that provision.
The amendments proposed by the Deputy could cause inadvertent problems that would permit the destruction of records older than ten years. This could conflict with the archives legislation and could require the retention of all records for ten years without regard to their relevance or value. Routine receipts, for example, are destroyed once they have been used for audit purposes and we do not want to accumulate mountains of documents which are not necessary. Regulations are the sensible means of dealing with this issue and, following suggestions from the committee, on Report Stage we will propose amendments to provide that the Minister for Finance report to the Dáil on how that system is working. That will meet the points of substance in the Deputy's amendment. Our legal advice suggests that the most efficient way of dealing with wrongful destruction of records is through disciplinary action rather than criminal procedures. That is in line with the committee's views on appropriate sanctions in its report on the Official Secrets Act.
I appreciate the points made by the Deputy in amendment No. 28. It seeks to establish more openness but the wording could cause problems. It could conflict with the long title of the Bill and could require the disclosure of information that is protected because of personal privacy, confidentiality or commercial sensitivity. That protection is automatic because the information might be required under a parliamentary question. There might also be constitutional protections for some information and it would be important that they be respected.
Section 38 requires the information commissioner to "foster and encourage the publication by public bodies . . . . . of information of relevance or interest to the general public in relation to their activities and functions generally". There are also provisions which require the information commissioner to foster disclosure of information generally aside from when requested to do so under the terms of the Bill. The experience abroad with regard to freedom of information legislation has been that answers to parliamentary questions have improved. This is because a public representative or member of the public can get the information across the counter under freedom of information legislation. There is no point in a Minister withholding that information. The operation of this legislation will mean that nobody will get away with giving dud answers to parliamentary questions because a person will be able to make a freedom of information request for the relevant information.
Is the Minister of State saying she will seek on Report Stage to address my concern that there is no stated obligation on a person to comply with the duty to provide access to records? Amendment No. 28 provides that a head may by order direct that no records held by a public body which relate to matters specified in the order shall be withheld. The Minister could direct that the information must be disclosed and, under the amendment, it would be a disciplinary offence for the person to wilfully withhold a record made by a public body.
We must learn from the lessons of the recent past. Officials in a public body wilfully conspired to withhold information which was being sought by an expert group established by the Minister for Health. In addition, the Department of Health was misled by that body, as was revealed by the Finlay tribunal. As that is not an offence, no action can be taken against those persons. A file has been sent to the Director of Public Prosecutions but it would be difficult to ground an offence of manslaughter. That is the current legal view of the matter.
It is appropriate, in terms of public administration, to insert a section which deals with the albeit unusual set of circumstances whereby employees or officials of a body might have information which it is not in their interests to disclose and who will be led by the usual spirit of self-preservation. It is appropriate that we recognise the capacity on the part of a corporate body or officials within a body to retain information or wilfully to give misleading information to an expert group established by the Minister and to withhold information from the Department which had a statutory obligation to supervise that body. It would be a masterpiece of distraction if we were not mindful of the capacity of public bodies in their own interest to withhold information about their culpability and to preserve themselves from being found out. These things can happen and we should provide for them in the Bill.
Will the Minister of State propose an amendment on Report Stage which would reflect the aspiration of this amendment so that the head of a public body such as the Minister could order that records held by a public body be disclosed? A High Court has power to force a public body to disclose relevant papers and a Minister should have an equal capacity to instruct a public body to reveal information and failure to comply with such an instruction should constitute a criminal offence. That is the point of the amendment. I hope the Minister of State accepts that point in light of what has happened in the case of one public body. A provision should be included in this Bill which would impose a legal obligation on officials to comply with an instruction to release information.
The Bill imposes a statutory duty on public bodies to respond to requests for information. I will have another look at those provisions with regard to penalties for non-performance. The information commissioner will have the powers of the High Court to send for records and will be able to forward them to somebody else if he or she decides they should be disclosed. I will have another look at what the Deputy proposes. The amendments as drafted could have a contrary effect to what the Deputy seeks to achieve. I will refer to them again on Report Stage.
I accept that the Bill creates a statutory duty on public bodies to provide information. However, if that statutory duty is wilfully breached by persons who do not want to disclose information, it should be an offence. We would not have had half as much trouble as we currently have if there had been sanctions for people who wilfully withheld information which it was in the public interest to disclose. I hope the Minister will propose amendments on Report Stage which reflect the sincere sentiments of this amendment.
Amendment, by leave, withdrawn.
Amendment No. 28 not moved.
FIRST SCHEDULE.
Amendments Nos. 30 to 35, inclusive, are related to amendment No. 29. We will deal with amendments Nos. 29 to 35, inclusive. Is that agreed? Agreed.
I move amendment No. 29:
In page 57, paragraph 1(2), between lines 27 and 28, to insert "An Bord Pleanála,".
Can the Minister of State indicate her response to these amendments?
I will propose technical amendments on Report State to ensure bodies funded by other public bodies will come within the scope of the Bill. I will look at the inclusion of the bodies mentioned and I should be able to reply positively with regard to a number of them on Report Stage. My amendments correct the use of an incorrect name for one body.
I hope the Minister of State will pay particular attention to the amendment regarding the Garda Síochána. The exclusion of the Garda Síochána appears to signal that the Garda is superior with regard to sensitive information to the Department of Defence, the Office of the Attorney General, the Director of Public Prosecutions and the Departments of the Taoiseach, the Tánaiste and Justice. In this era of transparency, the right to information should apply across the public service and should include the Garda Síochána. I am not saying intelligence information should be made public, but the public has a right to know how Garda policy is formulated and should have access to Garda records after a certain length of time. If the Minister of State says the exclusion is in the interest of national security, the implication is that the Garda is dealing with more sensitive issues than the other agencies I mentioned. There is sufficient protection in the Bill for Garda information. It is not proper to exclude that organisation completely from its provisions.
An Bord Pleanála is another organisation that has caused a number of problems for the public in the past. The Environmental Protection Agency is covered under European directives but it is not totally open for the purposes of this legislation. The Minister of State should have no difficulty including the harbour authority as proposed in amendment No. 32. Amendment No. 35 provides that every public body be subject to the provisions of the Bill. However, I am anxious that the Minister of State accept the inclusion of the Garda Síochána in the First Schedule.
I support Deputy McDaid's proposals. I am intrigued as to why the Minister of State excluded these bodies. In the case of An Bord Pleanála, there is a great deal of controversy about inaccessibility to information from that body. It is in the public interest and in the interest of democracy and justice that An Bord Pleanála should be included in the First Schedule. It baffles me that it was excluded and I am anxious to hear why. I have had reason on a number of occasions to challenge the Environmental Protection Agency about its role, functions and limitations and I have not always been satisfied with the responses I received.
I concur with Deputy McDaid about the Garda Síochána. While we must be sensitive to the public interest and to the sensitivity of information that becomes available to the Garda in the course of its investigations of crime, the Garda should be accountable under this Bill. Those three bodies concern me because I have more dealings with them than with the other bodies mentioned in the amendments. Why were they excluded?
The Minister of State indicated she would be prepared to look at including the bodies mentioned in the amendments. The exemption for the Garda Síochána is unusual, perhaps she would comment on that.
These bodies are not exempt. They will be included by order of the Minister for Finance after discussions with the relevant Ministers. They are included automatically under the first list of bodies in the First Schedule. I have had preliminary discussions with my Government colleagues about some of these bodies and we will be able to show considerable progress in this regard on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 30 to 32, inclusive, not moved.
I move amendment No. 33:
In page 57, paragraph 1(2), between lines 46 and 47, to insert "the Irish Sports Council,".
Amendment agreed to.
I move amendment No. 34:
In page 57, paragraph 1(2), line 53, to delete "the National Sports Council,".
Amendment agreed to.
Amendment No. 35 not moved.
First Schedule, as amended, agreed to.
SECOND SCHEDULE.
Question proposed: "That the Second Schedule be the Second Schedule to the Bill."
I will move an amendment to the Second Schedule on Report Stage.
Amendment No. 36 not moved.
Title agreed to.
Report of Select Committee.
I propose the following draft report:
The Select Committee on Legislation and Security has considered the Freedom of Information Bill, 1996, has made amendments thereto and the Bill, as amended, is reported to the Dáil.
Is that agreed? Agreed.
Report agreed to.
Ordered to report to the Dáil accordingly..
When is it proposed to take Report Stage?
That is a matter for the Whips.
It is provisionally arranged for 10 April.
Is the Minister of State giving an assurance that the election will not be called before then?
I thank the Chairman and members of the committee for their contributions and for the expeditious and open way in which the Bill was discussed. I also thank my staff and the staff of the committee.
Our amendments sought to expand the legislation rather than restrict it. I implore the Minister of State, before Report Stage, to take on board the amendments which seek to ensure that the principle of the Bill, which is to provide a statutory entitlement to freedom of information, will not be undermined by the range of exemptions which remain in the Bill and to which I object. I hope she will make every effort on Report Stage to ensure the alleged strength and radical nature of the Bill will not be obviated by too wide a range of exemptions.
I agree with Deputy O'Donnell. Our purpose is to get the Bill through the Legislature as quickly as possible. We will not delay it in any way.
I thank the Minister of State and her officials, particularly Mr. Carney, who were most helpful. The committee first considered this hurdle in the enactment of this important legislation. She said the Bill has taken the heart out of the Official Secrets Act. One could say that the stake which will be driven through that Act will be its repeal at a future date.
Our next meeting will be held on Tuesday, 8 April, at 2.45 p.m. It will be in private session to review statutory provisions relating to information, the outline of the draft report on the second part of our review of the Official Secrets Act and the review of the prevention of corruption Acts. An official of the Department will attend.
The Select Committee adjourned at 7.35 p.m. until Tuesday, 8 April 1997.