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

SECTION 8.

I move amendment No. 13:

In page 14, subsection (1), line 31, to delete "4 weeks" and substitute "3 weeks".

This amendment makes the legislation more consumer friendly.

We are anxious to ensure the legislation is consumer friendly and practical from the point of view of implementation. We looked at time limits abroad. In Canada and New Zealand the standard time is 30 days or four weeks. The Australian Act, which was amended to 30 days four years after enactment, originally had a time limit of 60 days or two months. In France two months is allowed for reply. We are very much in the lower end of the time limits provided abroad. Interestingly, the Bill does not state that Departments have four weeks to reply but that they are legally obliged to reply as soon as possible. If they do not reply within four weeks, the non reply is deemed to be a refusal and this goes straight to the information commissioner with no interim or internal appeals system. We could look at reducing the time limit when the Bill is in operation. If an issue is complex, Departments need time to be able to answer positively rather than negatively. If the time limit is too short, there will be too many negative answers.

Amendment, by leave, withdrawn.

Amendments Nos. 14 and 16 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 14:

In page 15, subsection (2)(d)(i), lines 15 and 16, to delete "and any provision of this Act pursuant to which the request is refused".

This is a technical amendment.

Amendment agreed to.

Amendments Nos. 15 and 17 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 15:

In page 15, subsection (2)(d)(ii), line 17, to delete section 10(1)(c),".

Under section 10(1)(c) a request for access may be refused if to comply with the request would cause a substantial and unreasonable interference with or disruption of the other work of the public body concerned. Taking into account the Minister of State's proposed amendment and section 8(2)(d)(ii), a head refusing access on these grounds will not have to say that the request was refused under section 10(1)(c) or give findings on any material issues relevant to his decision. Although there are other provisions allowing for refusal, that is, where a head will not have to do these things, there is no logical ground for excusing a head from these obligations. It is illogical for a head to refuse access on the ground of unreasonable interference with other work.

I am happy to accept the first of these amendments, although I will use slightly revised wording on Report Stage. The same applies to amendment No. 17. I will ask the draftsman to consider other wording for the Deputy's proposal, although we accept the point.

As regards section 10(1)(c), I have serious worries about the grounds for refusing access to information based on substantial and unreasonable interference with or disruption of the other work of the public body concerned. The concept that a body may avoid a statutory duty on the ground that it is too busy must be a first in Irish law. It smacks of the type of replies we get to parliamentary questions which state that the information sought is not readily available and could only be obtained by the expenditure of a disproportionate amount of staff, time and resources. I get replies to parliamentary questions about ten times each week from various Minister basically giving the excuse outlined in this provision. It is an excuse for not giving the information.

It should be remembered that every public body is already entitled to defer decisions on requests for eight rather than four weeks. In addition, a body can refuse a request on the grounds that it is frivolous or vexatious. There is a danger that section 10(1)(c) could be relied on by an unco-operative body to unjustifiably refuse requests. The threshold set by section 10(1)(c) is too low because the body itself will determine that the request for access would involve unreasonable interference with its work.

The amendment seeks to replace the unreasonable interference test with the higher test of wholly unjustifiable interference. It would be more difficult for reluctant authorities, which may tend to be retentive of records or information, if they had to prove requests involved wholly unjustifiable interference with its work as distinct from unreasonable interference or disruption of other work. I am glad the Minister indicated she would consult the parliamentary draftsman because the section could be used by an unco-operative person to circumvent the ethos of the legislation.

Will the person who decides that a request is unreasonable have the right to say it is wholly unjustifiable? Does the amendment only involve a change of words? Who will be the arbiter?

The Deputy should put that query to the Minister.

Will the Minister outline the position in comparison to other jurisdictions she considered in the context of the Bill? Will the position be different in Ireland?

We held discussions with people in other jurisdictions. They had cases in the early days where individuals sought 18,000 documents when they really wanted one. The Bill places an obligation on requesters to pinpoint what they want. It also places an obligation on staff to help people in that regard and to publish guides to help them find what they are seeking. The experience of the environmental regulations was that environmental bodies sought enormous volumes of documentation but a hostile public body said they could not have it, although they were entitled to it. It was a dialogue of the deaf. We want to avoid a position where staff are photocopying reams of information which the requester does not want and could not process. All jurisdictions have included provisions in relation to voluminous requests.

I have sympathy with Deputy O'Donnell's point. We do not want the provision to be abused. However, the overriding arbiter will be the information commissioner who will decide whether provisions are being properly used or abused. We consulted the parliamentary draftsman about the amendments and I accept the spirit of both of them, subject to the wording. There is some concern that amendment No. 17 may mean that the request must be processed first before it is refused, for example, 18,000 documents may have to be retrieved before a request is refused.

The aim of the provision is to stop unreasonable disruption of business. This involves ensuring people pinpoint the information they want and staff will be obliged to help them in that regard. I accept the spirit of the amendments but we must ensure that the rights of requesters are not inadvertently cut across in the context of justifying the processing of the request. There has been some preliminary discussion with the parliamentary draftsman about the amendments. I accept the principle behind them but I am anxious to ensure the wording is correct. I will introduce amendments on Report Stage to address these points.

Who will decide what might be unreasonable or wholly unjustified? How can one differentiate between that type of language? Could somebody pick a word and say it is wholly unjustifiable when it may be reasonable?

Ultimately the information commissioner will be the citizens' guardian.

He will only be involved in appeals.

The information commissioner can issue general reports on examples of what he considers totally unreasonable refusals and reasonable refusals. A body of case law will build up. Provision is also made for internal review and experience abroad shows that 30 per cent of cases are sorted out in that way. For example, a junior staff member may say a request would be too onerous to process but a senior staff member may say a person is entitled to the information.

The Bill is informed by the experience of bodies such as Earthwatch in terms of access to the environmental regulations. People can receive information electronically and new information is generally generated on word processors. A person could be supplied with a disc or with information by E-mail rather than photocopies. Since an increasing number of records are created or held only in electronic form, the processing of requests will become simple and voluminous requests will become less of a potential problem.

That does not answer my query but I thank the Minister.

Amendment, by leave, withdrawn.

I move amendment No. 16:

In page 15, subsection (2)(d)(ii), line 18, after "24(3)," to insert "any provision of this Act pursuant to which the request is refused and".

Amendment agreed to.
Section 8, as amended, agreed to.
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