Dáil Éireann - Volume 565 - 09 April, 2003

Freedom of Information (Amendment) Bill 2003 [ Seanad ] : Report Stage (Resumed) and Final Stage.

  Debate resumed on amendment No. 2:

  In page 5, between lines 7 and 8, to insert the following:

    “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.”

–(Deputy Richard Bruton).  

  Ms Burton: As I was saying before the break, the Government has given an incredibly lame set of excuses. We had a bad-tempered performance [75] from both the Taoiseach and the Minister for Finance, who was less than his usual charming self.

  Mr. Durkan: He has been a bit cranky lately.

  Ms Burton: He had no reply to make to the Labour Party's contention that in introducing the amendments he introduced on Committee Stage he has cleared the way for an extension of the concept of government to extend to members of the Government, Ministers of State, advisers of all types and any other person or group of persons – this could include consultants, experts and review groups as there is no limit on what this can be. The Minister and his officials can shake their heads and say they will be careful about this. The Information Commissioner reported that this definition of Government was “constitutionally unrecognisable”. No less an individual than Senator Mansergh has warned that the inclusion of the section of “other persons” – where “other persons” are undefined – in Government is something that many of us will have cause to regret some day. The Information Commissioner specifically warned in his report that it was likely to lead to costly litigation in the future. Such circumstances also led Mr. Justice Hamilton to comment at the end of the beef tribunal that had it been possible to get answers to the questions put, the tribunal might never have been necessary.

  I heard the Taoiseach say that in his lengthy service and experience in Government, civil servants have effectively abandoned the business of keeping proper records and writing proper memoranda. The Taoiseach appears to be presiding over the keeping of bad records by the Civil Service. The Public Service Users Group specifically said in its report that record keeping in the Civil Service was good. What is the Taoiseach talking about? Is the Civil Service to be blamed because it is unwilling to keep records? It is to be the fall-guy and patsy for the Government abandoning and essentially dismembering freedom of information?

  That is an unfair way of dealing with the public service which has served this country honourably and with ethical values and dignity. When the Committee on Finance and the Public Service met the high-level group, that group – no better set of people to defend its own patch – made it abundantly clear that theirs was an input into the Government's right to re-examine and review the Freedom of Information Act. They were not responsible – they made this clear during the presentation to the committee – for many of the amendments and in particular they were not responsible for this new definition and expansion of the understanding of what Government in the Republic of Ireland means. Under cover of a desire to expand the period after which records should be disclosed from five to seven years and to undertake the review process as set out in the original Act – and properly provided for there – the Government decided to do a smash and grab run on the Freedom of Information Act as it operated and essentially close it down.

[76]   We are told by Government that this review was initiated on 25 June 2002, barely two weeks after it was re-elected by the people. It was not mentioned by either Government party in their manifestos.

  Mr. Durkan: That is absolutely true they never said a word.

  Minister for Finance (Mr. McCreevy): I should have mentioned it to the Deputy.

  Mr. Durkan: The next time there is a general election, they will tell us all beforehand.

  Ms Burton: This was so important that five of our top civil servants were appointed to a review group. I call them the breakfast group because they held two mid-summer meetings, one before the summer recess, one after it for presumably about an hour and a half with a final one hour meeting to wrap up matters.

  Mr. Durkan: We should rename them the indigestion group.

  Ms Burton: Or the orange juice group. They had an input, as they explained to the committee, into the Government's request for a review. The Taoiseach, again, claimed this morning there had been widespread consultation on the matter. There was no consultation. A Government backbencher, Deputy Finneran, questioned the high level group and the Information Commissioner. He asked the Information Commissioner if he had been consulted and had he heard about the review. The Information Commissioner told him he heard it through the media. Deputy Finneran went on to ask him if he heard it on the grapevine. The Information Commissioner indicated he had learned of the changes through the media.

  Mr. Durkan: He read about them in the newspaper.

  Ms Burton: The Information Commissioner said he then sent off, at speed, some documents and letters with observations and a summary he had compiled on FOI during his time as Information Commissioner. This is a shabby excuse for good Government by a Government that obtained the people's confidence and then did a quick little run to cover up its tracks. The question remains as to what the Government is seeking to cover up. What is it that is so important that neither the media nor the public and electorate is entitled to know?

  We already know that the machinery of Government most in operation since this Government was re-elected is the shredding machine. Week after week it has shredded another promise made when it went to the electorate. The promise of 2,000 extra gardaí has been shredded.

  Mr. Durkan: That went up in smoke.

[77]   Ms Burton: The promise to end health services waiting lists has also been shredded as has the promise to build new schools.

  Mr. Durkan: That is right, it was a mirage.

  Ms Burton: We know the Government shredder has been working overtime.

  Mr. McCreevy: It is a bit like Baghdad.

  Ms Burton: Perhaps it was when the shredder broke down, having worked so much overtime in the aftermath of the election that the Government decided to rid itself of FOI thus ensuring material could not be released and their blushes would be saved for a little longer.

  Mr. Durkan: That is the first sign of hallucination.

  Ms Burton: This Government is presenting the people with a shabby deal. I praised the Minister's generosity when he acknowledged during the Committee Stage debate that what the Government was doing posed grave personal difficulties for more than 100,000 Irish people such as those in institutions and those who had various dealings with health services etc. at different stages.

  The Government smelled political pressure following the presentation by Colm O'Gorman of One in Four to the committee. Deputy Fiona O'Malley announced her unhappiness in this regard and the Minister correctly decided to throw in the towel on that particular part of the Bill which was never suggested by the high level group. That provision came out of the blue. It was meant to tidy up and hide more secrets, particularly those which were deeply personal to large groups of Irish people.

  If in that case the Government recognised it got it wrong, why is it not prepared to listen to other bodies, interest groups, NGOs and members of the public who are telling it this Bill is wrong? Last week I brought to the Minister's attention a letter recently issued by his Department to a request for freedom of information regarding advice given to him on cutbacks in Government services in the period before the general election. The citizen who applied for that information – this is an indication of the proposed new regime – received a letter from the Department, much of which related to parliamentary questions and replies thereto from people like Deputy Paul McGrath, requesting he pay €2,900 with a deposit of €500 to be paid up front.

  Mr. Durkan: That is called paying for democracy.

  Ms Burton: The Taoiseach was unusually snappy and bad-tempered this morning when trying to answer legitimate questions from the Opposition regarding FOI. He said his Department never asks for money for FOI requests. Per[78] haps the Minister would send him a note informing him that your Department is now requesting in the region of €2,900 for mundane information. The Minister's Department is claiming it will take it 130 Civil Service hours to compile such information.

  This matter was discussed in committee with the Information Commissioner. If Departments felt that requests were inappropriate, over the top or vexatious, there was recourse available in the Act or to go to the Information Commissioner. If this is to be the type of charging regime the Department of Finance is holding up as a model, it means that for the vast majority of citizens freedom of information will now be almost entirely beyond their reach when it relates to general Government decisions or decisions of public bodies.

  In its presentation to the committee, an organisation called The Wheel pointed out that many NGOs, charities and voluntary and community organisations use FOI in relation to environmental information and local issues that affect such groups. The kind of charging regime that the Minister's Department is now setting as a headline appears to be deeply unfair unless we get an explanation of the way it has been worked out.

  If the Minister fails again to accept the reasonable points made by the Opposition, which is to allow more time under the auspices of the Information Commissioner for proper consultation with all the affected parties, including the Opposition, and if he persists in his obdurate refusal to listen to reasonable critiques of what he has brought forward, including the dangerous extension of the notion of what constitutes government in this country, I hope that when the Bill concludes all Stages in these Houses and is sent to the President for her signature, interested citizens and NGOs may take up the issue with the President and ask her to give the Bill to the Council of State for its consideration. That is the last recourse to citizens and citizens' groups.

  In regard to the charging regime the Minister will introduce and the important work done under the Freedom of Information Act, there are four or five significant stories in today's edition of The Examiner, the Irish Independent and The Irish Times which come from FOI sources. There is a detailed story on compensation paid by the Garda to gardaí who were injured and made claims against the State. That information came from the Department of Justice, Equality and Law Reform through the Freedom of Information Act.

  If it is the intention, as per the headline set by the Minister's Department, to introduce an exorbitant charging regime for such information, it will be out of bounds to the many freelance journalists who are the mechanism by which the media uses the Act. It must be remembered that it is the media which supply most of our citizens with information about the doings of Government. We had the farcical situation, and I will finish on this point—

[79]   An Ceann Comhairle: Deputy, I am not sure what amendment we are on.

  Ms Burton: We are on amendment No. 2—

  An Ceann Comhairle: Amendment No. 2 in the name of Deputy Richard Bruton states: “The provisions of this Act shall not commence until the Information Commissioner has conducted a review . . . ”

  Ms Burton: —and my amendment No. 4. The Minister of State, Deputy Michael Ahern, told the committee last week that when a Deputy – I think it was Deputy Paul McGrath – requested information about the cost of the Government jet some years ago, the information—

  An Ceann Comhairle: Deputy, we are moving away from the amendment and as the Deputy is aware, there are many amendments to be moved.

  Ms Burton: I am about to finish my comments now.

  An Ceann Comhairle: The comments must relate to the amendments we are discussing, in fairness to other Deputies in the House.

  Mr. Durkan: It is a passing reference.

  Ms Burton: We are talking about the need for the Bill to be reconsidered and have a full examination. We heard from the Minister of State, Deputy Michael Ahern, last week that a parliamentary reply which simply said that the cost of the Government jet was the fuel—

  An Ceann Comhairle: Deputy, you are making a Second Stage contribution.

  Ms Burton: No, I am not.

  An Ceann Comhairle: We have to try to get the Bill back to where it should be – on Report Stage.

  Ms Burton: I am finishing on the same point—

  An Ceann Comhairle: We are discussing two amendments before the House and the Deputy's comments are not relevant to either amendment.

  Ms Burton: We want a review because the Minister is proposing not to allow the background briefing to parliamentary questions to be given under FOI. In the future we will not be able to know, by way of parliamentary questions, the full cost as opposed to the fuel cost of something like the Government jet.

  Mr. Boyle: Addressing amendments Nos. 2 and 4 as they relate to the Information Commissioner, it is a rich irony that one of the few unamended sections of the principal Act is section 36, which [80] refers to the right of the Information Commissioner to initiate a review of the workings of the Freedom of Information Act. It is an irony because when the outgoing Information Commissioner chose to exercise that very power, he was subject to vilification by a Cabinet colleague of the Minister's, in a committee of Members of this House and the other House. He was subject to vilification without being corrected by any other member of the Government or by the Minister. He is now retiring from his office after an honourable, distinguished and effective service but a cloud hangs over the Government in failing to respond to the criticism made of a public servant in exercising his public duty. This Government does not appreciate irony.

  The fact that section 36 is still on the Statute Book means that the Government believes any future review by the Information Commissioner will be ineffective. That is why it is essential that these two amendments are accepted. Before any new amendment of the principal Act comes into place, there must be a detailed examination by the Information Commissioner and his successor to make sure that the rights of the public are not trampled on to the extent that many of us in Opposition have seen.

  I was nauseated to hear the Taoiseach say today that the Information Commissioner had been consulted in relation to this legislation. It is clear from his contributions to the Committee on Finance and the Public Service that the Information Commissioner heard of the existence of the high level civil servants' group on the grapevine. A high-level civil servants' group was set up to examine the workings of the Freedom of Information Act and the Information Commissioner, whose job it is to overview the workings of that Act, was not told that the group was being formed. He heard on the grapevine that the group was in existence. He heard through the media that an amendment Bill was being put in place. At the very last minute, on his own initiative and not having been asked by the high-level group or by the Government, he presented a set of amendments for consideration before the Bill was finally drafted and presented to the Seanad and ultimately to this House.

  Anyone who would argue that that is an acceptable method of using the public servant who has a specific responsibility under legislation to ensure that freedom of information works for the benefit of the citizen has a poor understanding of the reason there is a need for freedom of information and why it must be allowed to work to the highest effective level. Amendment No. 2 refers to the involvement of the Information Commissioner at that level. Amendment No. 4 goes further and outlines the consultation process that should exist and be followed, even at this late stage. It mentions particular groups, some by name such as the National Union of Journalists and some generically like business users. The fact that the users group, which existed as a result of the 1997 Act, only met on a few occasions and [81] has not met since March 2001 means this Government has given up on the very idea of consultation. That should not surprise any of us in this House because this is a Government which believes it already knows the answers to the question of what it wants to set out in its own programme. It is a Government which does not brook opposition. It does not accept amendments. It certainly does not want to expose its decision-making processes to anybody else, either inside or outside this House, in a way that any fair-minded and democratically committed Government should do.

  On these terms, these are self-evident amendments which should be accepted and would be accepted by a Government which had a firm commitment to the real idea of freedom of information. I do not expect that either amendment will be accepted, but I hope that even at this stage the Minister has a road to Damascus conversion – perhaps we should call it a road to Baghdad conversion. I hope he uses the remaining hours available on Report Stage to critically accept much of what the Opposition is saying and to produce an amending Bill which goes some way towards being a workable document for citizens.

  Caoimhghín Ó Caoláin: I support amendments Nos. 2 and 4 in the names of Deputies Richard Bruton and Burton. The argument for a proper assessment, which these amendments seek, was clearly outlined in the Second Stage address of the Minister. On Second Stage, he stated that the Government's position on freedom of information is quite simple and straightforward, that the changes to the legislation proposed in the Bill are based on the need to ensure the business of Government can be properly and efficiently organised, and that the purpose of the Bill is to allow the Government to carry out its work, no more, no less.

  It seems to me from that particular section of the Minister's Second Stage address that he is strongly of the view that the Freedom of Information Act 1997 in some way was a restrictive measure in terms of processing the work of Government. We have challenged him repeatedly on Committee Stage and again today to show the evidence of how the Freedom of Information Act 1997 was a restriction or a curtailment of the business of Government. He has failed to offer any evidence to support his contention and there appears to be no research or documentary evidence to support that view – all the more reason that should now occur. Otherwise the only interpretation we can put on his contribution is that the Minister himself believes that the more secretive the deliberations of Cabinet and all of the information flow to Cabinet, the better the working of Government. That, of course, is to run in the face of the ethos of the Freedom of Information Act 1997.

  For that reason, and also because this new so-called amending legislation seeks to not only restrict access but also to introduce new elements, [82] in terms of the accepted norm of Government by the extension to unnamed committees made up of unidentified individuals who will carry the responsibility of deliberation and advice directly to Cabinet but without scrutiny and the opportunity to be held accountable, this is a major change to existing legislation. It is a retrograde step that needs proper and careful evaluation by an objective person such as the Information Commissioner, who will be in a position to assess the suitability or otherwise of the proposition.

  The Bill also introduces prohibitive fees. On Committee Stage, we outlined to the Minister that this will leave the option of utilisation of the Freedom of Information Act as the preserve of those who can afford to secure—

  An Ceann Comhairle: I am afraid that the fees do not arise on this amendment.

  Caoimhghín Ó Caoláin: I am afraid they do.

  An Ceann Comhairle: The Chair is ruling that they do not.

  Caoimhghín Ó Caoláin: It is difficult enough to talk about a Freedom of Information Bill when to all intents and purposes we are being censured from addressing the deficiencies which argue for the very points presented in amendments Nos. 2 and 4.

  An Ceann Comhairle: The Standing Order is quite specific, you speak to the amendments before the House.

  Caoimhghín Ó Caoláin: I am speaking to the amendments, make no mistake. It is imperative that not only the workings of the 1997 Act but the potential curtailment and restrictions built into the proposals of the Government in this amending legislation, need the scrutiny of the Information Commissioner and a much wider public consultation process, which is requested in both amendments. I cannot make my position on this clearer.

  These prohibitive fees will undoubtedly bar the door to many ordinary citizens who have heretofore—

  An Ceann Comhairle: Deputy, you are coming back to the question of fees. Address yourself to the amendments.

  Caoimhghín Ó Caoláin: The difficulty is not mine, a Cheann Comhairle, with respect.

  An Ceann Comhairle: There are a number of Members and we would like to facilitate them.

  Caoimhghín Ó Caoláin: The difficulty is you are not recognising the important points I am making in support of the premise presented in amendments Nos. 2 and 4.

[83]   An Ceann Comhairle: I am. A general reference is acceptable, but the detail is not.

  Caoimhghín Ó Caoláin: I could go into real detail. These are not detailed contributions. These are cursorily addressing the key points in support of the arguments presented in both amendments.

  An Ceann Comhairle: Stick with the amendments.

  Caoimhghín Ó Caoláin: I might have finished at this stage, which is the pattern I have noted throughout today.

  Altogether apart from the fact that the greatest number of requests are made by individuals, and while a great number of others are also made by representatives of the media, another element which needs to be addressed by the Information Commissioner is the restrictions in the case of advocacy groups such as SOCA – Survivors of Child Abuse, Parents for Justice or the representatives of the intellectually disabled who last night presented themselves in such numbers in this city.

  All of these important points need to be taken on board. The Bill, and what the Minister is proposing to do, flies in the face of the intent of the Freedom of Information Act 1997. He is preparing, not for better Government but for a Government that will be tied up in litigation for some considerable time to come until the measures involved in this amending legislation are reversed.

  Mr. Durkan: Taking up where the last speaker left off, it is not a question of providing for better Government but of providing for Government in hiding because it appears as if the Government is about to go into hiding.

  I support the two amendments which are fundamental to what has been discussed over the past two or three weeks. What amazes me most is that the Minister, who is a good constituency colleague of mine and for whom I have great respect and admiration, should ignore this opportunity to be the great liberal and to come forward and accept the two amendments. That would be in keeping with his membership of this House, certainly for as long as I have been in it. That is much sought-after and would be appreciated by the general public.

  I am also disappointed that the Progressive Democrats are not here to assist me in this argument. There was a time when they stood by the Republic, but even in republics where they grow bananas this kind of legislation would not be introduced, notwithstanding the evidence and the benefit of the bananas and the ensuing danger when they are thrown on the ground.

  I do not know where the campaign came from to change the legislation that has sat so freely on the Government's shoulders for the past number of years. What is it afraid of? Why does it not accept the amendments? Would this not be more [84] simple? It would be a clear indication of its acceptance of the rights of the Opposition and the case it has made. The Government should accept that it should not always be necessary to go down the hard road and prise out information by way of parliamentary questions. We know how difficult that can be; it hurts us greatly on this side of the House that we have no control over the replies, something to which we have referred on several occasions in the past. May the day fast approach—

  An Ceann Comhairle: The Deputy made the point that the amendments are related to the legislation. His contribution should be related to the amendments.

  Mr. Durkan: Absolutely, the Ceann Comhairle will see that in a couple of seconds.

  The whole point of the two amendments is that there should be further consultation with the Information Commissioner and with other people who have an interest in obtaining the information. Why does the Government not do this? It would be simple. It would not require a huge expenditure from any quarter, nor would it require the establishment of a commission of inquiry – there have been enough of those. It does not require any great imagination from the Government at all to accept two simple amendments.

  I have heard much discussion and debate in the past couple of weeks about the Minister's acceptance of certain elements of the Opposition's proposals. I am not so certain about the full benefit and weight of those concessions to the Opposition so far. These amendments are fundamental to what the Opposition has been talking about. Its requests have not been unreasonable. What it is really asking is that the Government continue to have an honourable and ongoing discussion, after which the Opposition will have no difficulty with reasonable suggestions from the Government if it is proven in a debate that they are reasonable. We have a problem with the fact that the Government, having obtained the collective wisdom of those who gave the advice, many of whom will be directly affected by these changes, is now hiding behind smoke and mirrors and moving backwards in time. All governments throughout Europe are moving forward towards creating a greater degree of openness and shedding more light on what happens in government.

  These two amendments are the minimum that is required by this side of the House. The Minister would do the House and the nation a good turn by accepting these amendments without question. He would be seen as a liberal Minister who favours change and setting aside old attitudes and prejudices. If the amendments are accepted, it does not necessarily mean that the Opposition is running the Government. God between us and all harm, we would not like to be associated with it, given some of the things that have been happening.

[85]   Mr. McCreevy: Fine Gael is small enough as it is.

  Mr. Durkan: My honourable colleague should not whistle past the cemetery. I hope he does not live to regret it – actually, I hope he does.

  Mr. McCreevy: It all goes around.

  Mr. Durkan: It is dangerous territory, given the people's capacity to show their anger when the time comes.

  Mr. McCreevy: I absolutely agree.

  Mr. Durkan: The Minister could set himself up as a real liberal, as a Minister with a view to the future, even perhaps as a future Taoiseach—

  Mr. McCreevy: Perhaps a monument will be erected to me.

  Mr. Durkan: —if he could see his way to recognising the wisdom of what the Opposition is saying. I do not accept at all, nor could I if I was on that side of the House, the Government's keeping information to itself, tightening the avenues of communication and restricting the flow of information. Even the Minister's own job, his influence on the replies to parliamentary questions, is being restricted. This is daunting.

  An Ceann Comhairle: There is nothing about that in this amendment.

  Mr. Durkan: It is just as well there is not because if there was, I would be even more upset than I am already.

  The Minister should embrace these two amendments which would alleviate much of the anxiety and suspicion caused by the Government's rush through the legislative stalls with this legislation. It would be hugely reassuring to this side of the House that the Government was not up to any mischief – that it did not intend to create smoke and use the mirrors to magnify the smoke in the future. It would be a clear indication that the Government's intentions were honourable and genuine. However, I am worried that the reason this proposal is not being accepted is that the Government is afraid. It has something up its sleeve. It does not want this discussion to take place over the next few months. It does not want these amendments to shine light into the corridors of power because it could become embarrassing.

  The Government may also have something in mind that it has not told us about – some little present for the Opposition that it has not mentioned, not even to the Progressive Democrats. It would not be safe to mention it because the Progressive Democrats are supposed to be the watchdogs. Perhaps I would be better off appealing to the watchdogs in this case. They must surely accept what is being said in the two amendments before the House. Surely, with their love [86] for the Republic, for right over wrong, for democracy—

  An Ceann Comhairle: The Deputy is moving away from the amendments.

  Mr. Durkan: I am talking about the amendments. What else can I talk about? Surely the Progressive Democrats will embrace the amendments.

  An Ceann Comhairle: We are discussing amendments Nos. 2 and 4.

  Mr. Durkan: Those are the very amendments to which I am referring. As proposed, they will enable further discussion to take place before the legislation goes any further. That is reasonable.

  If the Progressive Democrats were given a chance they would come forth into the House and embrace the two amendments put down by the Opposition.

  Mr. Boyle: God bless them.

  Mr. Durkan: I hope that when they do come in, they will vote in accordance with their previously expressed views on issues of this nature. We need to shed more light on the dark corridors of power. It would be an enabling act on their part assuming, of course, that they are still adopting the role of watchdogs and are not just posing like poodles. This is a serious business and it is up to them to do something.

  The Minister is a reforming Minister, which we on this side of the House have encouraged over the years. He should come forward now and let us see that he is a true reformer by accepting the two amendments. Moreover, the Progressive Democrats, the arm of Government that protects the people from the Government – a wonderful, unique position – should come forward and tell us that they intend to support these two amendments because they are standing by the people.

  Mr. McCreevy: As I indicated on Committee Stage last week, I will not be accepting amendment No. 4 that effectively replicates the general thrust of the recent Private Members' Bill sponsored by the Labour Party, which was fully debated in this House and defeated.

  The purpose of the Bill is to strike the appropriate balance between openness, transparency and accountability on the one hand and the proper functioning of the government process on the other. The core principle of the Bill is that it is in the public interest that the institution of Cabinet works well and effectively. This Bill is a carefully balanced package of measures which preserves the basic objective of freedom of information while ensuring that Government can conduct its business in an effective manner, in accordance with the public interest.

  The Freedom of Information Act has made an important contribution to improving the quality of public debate in this country; it has opened up [87] access to personal information by individuals and it has made an important contribution to the ongoing process of public sector reform. However, freedom of information cannot be the main factor in determining how the Government conducts its business.

  This Bill is narrow in focus. It strengthens the protection for records relating to Government business, it provides certainty in relation to the deliberative process of Departments and it contains a number of technical changes designed to improve the operation of the Act.

  The Bill did not emerge from a vacuum, as these amendments would seem to suggest. I explained in some detail on previous Stages the system that exists for supporting FOI and how this had served to keep the Act under continual review. I also explained how a very considered report had been prepared by the high-level group. I explained how previous reports on the Act had been available to that group and to the Government, including the reports prepared by the Information Commissioner and the Civil Service Users Network. I explained the mechanisms that have existed for channelling the views of FOI stakeholders on the operation of the Act.

  The Bill has now been debated for 27 hours in the Seanad and for 35 hours in the Dáil and will be debated further today and tomorrow. The Joint Committee on Finance and the Public Service devoted considerable time to consideration of the high-level group report and to submissions from various interested parties. We have had debate on the Private Members' Bill sponsored by the Labour Party. The Information Commissioner has published his commentary.

  The implication from these amendments that a further 12 months consultation is either necessary or appropriate is as specious as the suggestion that the introduction of provisions of the Bill should effectively be made subject to a report prepared by the Information Commissioner.

  The core of the Bill was informed by the high level group. As far as these provisions are concerned, I have no hesitation in saying that Ministers and Secretaries General are in the best position to assess the effective functioning of Government. The Government decided to amend the FOI Act for no other reason than to ensure continued good government and to promote efficient administration. It chose to adopt what it knew would be an unpopular course not because it wanted to hide information but because of legitimate concerns about aspects of the 1997 Act. There is no other agenda.

  As I said on Second Stage, the report of the Information Commissioner was examined by my officials in consultation with the Office of the Attorney General. I am fully satisfied that the concerns about legal issues raised by the commissioner are not justified.

  Mr. R. Bruton: The truth is now beginning to come out in the Minister's reply. Although I can[88] not quote him exactly he said that Government is in the best position to assess what is needed to protect Government or in other words Government knows best. Anything that serves the convenience of Government and protects Ministers from undue scrutiny of what they are doing is best for the people. This is the paternalistic approach that we thought was dead and buried. We thought the lessons of the tribunals, which Ministers on the other side of the House repeatedly say they have learnt, had influenced policy.

  However, the Minister is blatantly telling us that they know best how to protect the public from information they would be better not having. It might damage them to know these secrets. This is the sort of arrogance that is not in character with the Minister for Finance. I cannot understand why he seeks to protect weak willed people around him who are unwilling to stand up and take responsibility for the decisions they make. This has not been a hallmark of his political career. For the Minister to introduce a charter for these weak kneed Ministers is a disgrace and lets down his high standards.

  We need a proper review as proposed here. This Act is not the plaything of Government to be changed any time it causes embarrassment or a bit of difficulty. It is not the Government's property to treat in this way but is the property of Irish citizens who should have been consulted. The cardinal sin is this was done without any notice or suggestion of it in the lead up to Government. It would be ludicrous to believe that two or three weeks after coming into Government the scales fell from their eyes and they suddenly discovered the enormous damage that freedom of information was doing to the system of government. The Government came in with an overall majority and knew it could jackboot through anything it wanted and it decided to take that opportunity.

  Ms Burton: The Minister often talks of favouring Boston over Brussels in his approach to politics. I remind him of what James Madison said about the development of the American Constitution:

    Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.

In the Minister's comment that higher level civil servants and Ministers know what is best for Government, he has basically thrown out all the notions that arose in response to the tribunals of openness, transparency and accountability. The Minister was one of the most trenchant critics of Mr. Haughey and the GUBU era when we had grotesque, unbelievable and unprecedented events.

  Mr. McCreevy: And bizarre.

  Ms Burton: These events led to incredibly costly tribunals and procedures, which unfortu[89] nately have debased the whole currency of politics. The concept of freedom of information was developed by the Labour Party largely in the context of a more modern, confident, successful and open Ireland, which had the power to tell the citizenry what was going on. The Taoiseach, unfortunately with the agreement of the Minister for Finance, wants to cut and run and to say that from now on the public will be told what the Government chooses to tell them. It will be for people in the Dáil to try by various stratagems to dig out the truth.

  An Ceann Comhairle: Your two minutes are concluded.

  Ms Burton: It is like the film “Back to the Future”. We are back to the era of Haughey, Burke and GUBU as the right to information and proper questioning is closed down. It is shameful the Minister has refused to accept the two amendments.

  Mr. Boyle: In making his argument, the Minister in his infamously imperious way fails to note the splendid isolation in which he finds himself on the Government benches without one other member of his party present in the Chamber and without any member of the junior partner in Government present either. Their absence is particularly marked. Throughout Committee Stage, the Minister of State in the Department of Finance failed to make one appearance. Even when the Minister for Finance was unable to attend on the fourth day of those hearings, the two Ministers who came in were not of the Department of Finance and were of the Minister's party.

  The contributions of the Progressive Democrats on Second Stage were equally muted.

  An Ceann Comhairle: I am reluctant to intervene because you have only two minutes in total, but you are not debating the two amendments before us.

  Mr. Boyle: I am debating the argument made by the Minister.

  An Ceann Comhairle: You are not. I ask you to return to the amendments for your remaining minute.

  Mr. Boyle: In relation to the amendments and the Information Commissioner—

  Mr. Durkan: I think the Deputy deserves a bigger audience. I call for a quorum.

  Notice taken that 20 Members were not present; House counted and 20 Members being present,

  Mr. Durkan: On a point of order, how many minutes did it take for the quorum to assemble?

[90]   An Ceann Comhairle: The bells ring for four minutes. Deputy Boyle has one minute remaining.

  Mr. Durkan: Is it in accordance with the Standing Order?

  An Ceann Comhairle: The quorum arrived within the Standing Order range.

  Mr. Durkan: Was it in accordance with the Standing Order?

  An Ceann Comhairle: Yes, it was.

  Mr. Boyle: The four minutes that elapsed to allow the quorum to assemble still saw the failure of Progressive Democrat Members to come to the Chamber. It was a fairly pathetic attempt by Fianna Fáil Members to fill their seats in the interim. The central argument remains the same. The Progressive Democrats have been weak-kneed in this attack on civil liberties and when the party meets next weekend, it can celebrate its role in constricting Irish democracy.

  Mr. O'Connor: It will be a bigger conference than that of the Deputy's party.

  Mr. Boyle: That is the message from this Opposition. My party is committed, as are the other Opposition parties, to rescinding this amendment Bill immediately if we find ourselves part of the next Government. The Government believes it is gaining some type of respite and that its activities will not be discovered but if there is Green Party participation in the next Government, whether it is with Fianna Fáil or not—

  Ms Cooper-Flynn: Is the Deputy looking to join us now?

  Mr. Boyle: Take it as a warning. This Bill will be rescinded and there will be retrospection to cover activity from 1997 to 2002.

  Mr. M. Smith: Hope springs eternal.

  Caoimhghín Ó Caoláin: I wish to refer again to the Minister's comment in his opening contribution on Second Stage when he said: “I do not accept that it is in the public interest that the Government's consideration of issues should be weakened.” In that statement the Minister was saying that the Freedom of Information Act has in some way weakened the process of government. However, it is being recognised by a growing section of the population that the weakening of the Government has nothing to do with the Freedom of Information Act but is due to the Government's component parts.

  The Minister is flying in the face of everything that was good, purposeful and direct in the Freedom of Information Act 1997. There should be a full review of the working of this Bill. I wish to highlight one section which needs to be [91] addressed, that which refers to the Offences Against the State Act. This will be employed as a crutch to refuse access to information that is critical to people who have been denied the opportunity of seeking compensation following the Supreme Court decision in 1991 in relation to the outworkings of the Offences Against the State Act and the denial to them of the right to employment within the Civil Service and the various arms of Government, nationally and locally. A review by the Information Commissioner would highlight the unconstitutionality of this continued association with the Offences Against the State Acts, which series of Acts were committed by this Government for review and repeal directly as a result of the Good Friday Agreement. It is wrong to continue to include that section in the so-called amending legislation. I support Amendments Nos. 2 and 4.

  Mr. McCreevy: The Government must be able to carry out its business in an orderly way. All organisations have the right to decide how to carry out their business and the Government is no different. The Government has considered this Bill carefully. It is not a rushed measure. We set up a high-level group of Secretaries General to examine all aspects of the existing freedom of information legislation. The group looked carefully at the working of the Act and made a number of recommendations which are now being implemented in this Bill.

  Freedom of information is important but it cannot be allowed to interfere with the Government doing its business efficiently in the interests of the community. While the various interest groups may have a legitimate view about the operation of Government, they are not responsible to the Oireachtas and the electorate. The Government is mindful of its responsibility to the people through the parliamentary process. It is in the public interest that Government acts in an efficient and effective way, and this is what the Bill is about.

  Mr. R. Bruton: If the Government was mindful of the political process, the Minister would not guillotine every debate here. Neither would he have gone to the Seanad without even having his amendments ready. The Seanad sought to debate an issue about which the Houses of the Oireachtas had not had the opportunity to have any hearings. Even though Ministers were saying on air that they welcomed hearings, they were trying to ram the Bill through the Seanad. The Government has little or no respect for Parliament. One of the key measures in the Bill is to remove the right to obtain background information on parliamentary business. It is a direct assault on Parliament's ability to have some opportunity of gaining access to a reasonable amount of information.

  As Deputy Boyle said, the empty Progressive Democrats benches tell us everything. I can recall [92] the words of Deputy O'Donnell in 1997 when she said: “I can envisage the Government of the day, which has possession of certain information, being determined to bleed the public interest in order to withhold that information”. That is precisely what we have today. The Minister is seeking to withhold information and his explanation is that the public interest demands it. What evidence does he offer for that? None.

  Mr. M. Smith: Suspicion haunts the guilty mind.

  Mr. R. Bruton: Interestingly, I tabled parliamentary questions to each Minister in turn to know if they had any examples in their Departments of cases where information had been released that had been damaging to the decision-making process or the public interest. Not one Minister volunteered any such information and some of the replies are revealing. For example, the Minister for Foreign Affairs was not even aware that under section 19, which deals with Government, there is discretion and that it is not a mandatory refusal to release information. He said that it provides for no public interest test, so he does not even understand the legislation he now purports to be a party to amending.

  Similarly, the Minister for the Environment and Local Government was not aware of that provision. At least the Minister for Health and Children is frank; he said “I am not aware of any case where disclosure by any office has had a significant, negative impact on the public interest”. He is perhaps one of the Ministers who has had more occasion than most to see issues being debated in public that have emerged from public interest requests. At least that is one Minister who is honest.

  The reply from the Minister for Justice, Equality and Law Reform is quite extraordinary. He said, “I am not clear as to how the public interest could be better served in any instance by, in effect, refusing to comply with the law of the land”. He is conscious that no damage has ever been done to the decision-making process by releasing information under a public interest request, yet he is a member of the Government that is seeking to change the legislation. It is absolutely clear that there is no evidential or other basis for making these changes. If the Government was sincere about what it is doing it would give the public an opportunity to have a say by agreeing to the sort of review that is at the heart of these amendments. In that way we would have a period during which the Government could produce evidence of damage that could be done, if there is any. No such evidence has been cited, however.

  One suggestion was that the New Zealand example had revealed such evidence but when I went to check that I discovered the legislation dates back many years and the so-called sudden discovery of potential damage pre-dated the introduction of our legislation. The Government [93] has no evidence to support the contention that the public interest has been damaged by the Freedom of Information Act 1997.

  The Government is unwilling to accept the basis on which it was elected to Government. Ministers were given their seals of office on the basis that their decisions would be subject to examination and scrutiny five years after being reached but they now wish to step back from that commitment. It is unrealistic to bring in procedures such as, for example, the certification system whereby there will be no review, appeal or test of reasonableness. We are expected to accept that sort of system which shuts down access to information. The Bill is a bad day's work. The House should agree to the review that is the subject of these two amendments so that at least we can gain time and the weight of public opinion can penetrate the thinking of the 15 Cabinet Minister's on the other side of the House.

  An Ceann Comhairle: I will now put the question.

  Ms Burton: You did not call me to speak on my amendment, a Cheann Comhairle.

  An Ceann Comhairle: We only call the proposer of the first amendment to respond to the debate and Deputy Bruton has done that, so I will put the question.

  Amendment put and declared lost.

  An Ceann Comhairle: Amendment No. 3 arises from committee proceedings, while amendments Nos. 7, 8 and 9 are mutually alternative and are related to amendment No. 3. Amendment No. 13 is also related, so all can be discussed together by agreement.

  Mr. Boyle: I move amendment No. 3:

    In page 5, between lines 7 and 8, to insert the following:

      “1.–The long title of the Principal Act is amended by substituting ‘PERSONS' for ‘MEMBERS OF THE PUBLIC'.”.

This amendment arises from the suggestion of the Information Commissioner in his commentary. He believes that in order to remove any confusion on whether the right of access is confined to natural persons, the reference to “members of the public” in the Principal Act should be replaced by “persons”. There seems to be some logic in suggesting this change. Having listened to the Minister's arguments on Committee Stage, I am not too sure what his logic is in not accepting it. The amendment is mainly technical in nature and I would again ask the Minister to accept it.

  Amendment No. 7 builds upon that change in that having changed the reference to “members of the public” to “persons”, an interpretative definition of “person” is required within the Bill. In his commentary, the Information Com[94] missioner suggested that the definition of “person”, as it appears in the Interpretation Act 1937, without the clause unless the contrary intention appears, is sufficient and should be included. Amendments Nos. 3 and 7, therefore, are linked in that respect.

  Amendments Nos. 8 and 9 are variations of my amendment No. 7 and either one or the other would be acceptable in terms of bringing about a necessary change to the Bill.

  Amendment No. 13, as the Minister brought to our notice on Committee Stage, would insert a technical change in the Bill concerning a statutory regulation the Minister made to include local authorities and health boards. The reference needs to be specially made in the Bill and it seems to be acceptable as it was reported to us on Committee Stage. I only hope the Minister will be as willing to accept Opposition amendments as we have been to accept sensible Government amendments on Committee Stage.

  Even at this late stage in our consideration of the Bill, perhaps the Minister could respond to one question. The Minister has always used the argument that the changes he was making to the Bill were to bring our legislation in line with similar provisions in other jurisdictions. I challenge the Minister, however, to name one parliamentary democracy that is introducing additional legislation that seeks to restrict freedom of information laws already granted to its citizens. He will find that we are the only country that is going in the opposite direction. Having produced legislation in 1997, which is a template for other parliamentary democracies – in fact, it has been adopted in its entirety by the Scottish Parliament – the Government has deliberately chosen to restrict information in a way that runs counter to every other country in the developed world.

  Caoimhghín Ó Caoláin: I wish to address amendment No. 3, as did Deputy Boyle.

  I will also address amendment No. 9 in my name, the spirit of which is also reflected in amendments Nos. 7 and 8. These amendments were recommended by the Information Commissioner and, as such, must hold some weight. They are extremely important in that they seek to verify the definition of a person and the right of an individual to access directly information on his or her own behalf or on behalf of an advocacy or representative group representing the interests and information needs of those for whom often times the prospect is daunting or prohibitive. We have had many examples in the recent past of important work being carried out by advocacy groups and we have named them repeatedly. I reflect again on the important work of SOCA, the One in Four group, Parents for Justice and a range of others who are doing important and wonderful work on behalf of many who could not organise access to critical information on their own behalf.

  Supplanting the word “persons” for “members of the public” clearly and explicitly spells out the [95] real intent of the initial legislation and removes any prospect of debarment being placed in the way of legitimate inquiries. I appeal to the Minister to accept this important amendment which seeks to uphold the rights and entitlements of all to information.

  On amendment No. 9, the definition of “person”, as presented in the wording, is in line with the stated formula in the Interpretation Act 1937 and, therefore, already has a status in legislation to which surely the Minister will not now object. I urge the Minister to accept amendments Nos. 3 and 9 and the related amendments.

  Ms Burton: Amendment No. 8 is in line with recommendations made by the Information Commissioner. In the Minister's pathetic attempt to suggest that a broad-ranging consultation process took place, he made the suggestion that the Information Commissioner had been consulted and that his recommendations had been taken on board. However, I repeat that the Information Commissioner told the committee that he found out about the work of the high-level review group through the media and in reply to a question from Deputy Finneran he said that he heard about it, to use Deputy Finneran's words, “through the grapevine”.

  The way the Government has chosen to deal with this public office holder who is independent of the Dáil and Government is shabby and underhand. It is particularly shabby when it is allied to the unprecedented and unwarranted attack on this office holder by no less a person than the Minister for Justice, Equality and Law Reform who normally sits smirking and squirming on the benches opposite, but today no member of his party nor his august self is present to hear any part of the discussion on Report Stage of the Bill.

  What is happening is very much what the Greeks call “hubris”, in that the Government, two weeks after being re-elected, decided that empowering the citizenry to find out what was going on, to request information on the activities of Government and on their personal records, represented too much openness and transparency. With the prospect of five more years in office, it decided there was a lot to be done and that it would start by changing the Freedom of Information Act.

  I regret the intemperate attacks made by the Minister for Justice, Equality and Law Reform on the holder of the Office of Information Commissioner. In many ways this Minister has supplemented that insult made to the independent office holder by repeating, as the Taoiseach did this morning, the suggestion that the office holder was consulted. The office holder was not consulted. He rushed to put forward a number of suggested amendments, of which this is one. It behoves the Government to accept the amendments which have been offered by the Information Commissioner based on his experience of the operation of the Act over a five year period [96] and on his impartial holding of an office to which he has given great credit.

  When the newspaper proprietors made a presentation to the committee, one of the points they made, which was also made by others, was that the Freedom of Information Act was legislation of which a modern and prosperous Ireland could be proud. They also pointed out that the Act not only has been used as a model in recent times by the Scottish Executive in preparing the Scottish freedom of information Act, but has been widely used in eastern Europe by those states which are in the process of joining the Europe Union over the next few years.

  It is ironic that just as Ireland has a law of which politicians and the public service can be justifiably proud, the Government should rush to change it. It is a mark of the Taoiseach and the Government, particularly the Minister for Finance, that in their bad-tempered response to the mere notion that their motives for changing the Freedom of Information Act might be impugned or exposed for what they are, basically to hide information from the public, they should in such a cavalier fashion reject out of hand those amendments, such as the one I tabled, which were legitimately put forward by an independent office holder for consideration by the Government.

  Mr. McCreevy: I will not be accepting amendments Nos. 3, 7, 8 or 9. I explained on Committee Stage that the Attorney General has advised against such amendments on the basis that the Freedom of Information Act, taken with the 1937 Interpretation Act, provides that the right of access under FOI to records is conferred on natural persons. The advice I have received is that a formula that conferred such a right on three different yet apparently equal categories could create a legally problematic situation in the event of competing claims being made as to the ownership of information released under the FOI.

  Amendment No. 13 in my name will supersede Statutory Instruments 516 and 517 of 1998, which defined the commencement date of the Act for local authorities and health boards as 21 October 1998 and removed a potential overlap between section 6(9) of the principal Act and the First Schedule. These statutory instruments will be revoked.

  Deputy Boyle made the point that our FOI system is more liberal in terms of protection of records of Government than other jurisdictions. The purpose of this Bill is to bring the level of protection of such records up to a comparable standard. Even after enactment of this Bill, Ireland will continue to have a liberal FOI regime on the international stage.

  For those who contend that the Government is out of step or that the measures in this Bill go too far, I draw their attention to the following provisions of Freedom of Information Acts overseas with which our Act is commonly compared. In Australia, the secretary to the Department of the Prime Minister has the power to certify that [97] a document is a Cabinet document. Such a certificate establishes conclusively that the document is exempt. In New Zealand, a record may be withheld if it is necessary to maintain the constitutional conventions which protect collective and individual ministerial responsibility or the confidentiality of advice tendered by Ministers of the Crown and officials. In Canada, the Act does not apply at all for 20 years to a long and non-exhaustive list of Cabinet confidences including communications used for reflecting communications or discussions between Ministers of the Crown on matters relating to the making of Government decisions or the formulation of Government policy and records, the purpose of which is to brief Ministers of the Crown in relation to matters that are before Cabinet. In the United Kingdom, specific protection is afforded to ministerial communications and protection is also afforded to information which would or would be likely to prejudice the maintenance of the convention of collective ministerial responsibility or which would or would be likely to inhibit the free and frank provision of advice or exchange of views for the purpose of deliberation.

  Mr. R. Bruton: By using those examples the Minister is illustrating the Opposition's point. In the case of the UK they are talking about the likelihood of certain things emerging – in other words, there is to be a harm test in relation to the protection of Government records. Here we are proposing that there should be no harm test; the whole thrust of what the Minister is doing is to dismantle the harm tests which have been carefully put into the existing Act.

  To bring in a certification procedure without appeal, review or any test of reasonableness flies in the face of the examples cited by the Minister. We have seen evidence of this with the high-level group to which the Minister refers in glowing terms. It has not offered any examples of damage or harm being done. The situation is the same in New Zealand, where the restrictive protections afforded are tightly linked to Cabinet and Government decisions. We are talking here about throwing a very wide net of secrecy so that virtually all ministerial communications will be protected. There is no test for a document being furnished to Cabinet or memorandum in Cabinet in the Minister's provisions. He is giving blanket protection to ministerial communications if there is anything under consideration, and “under consideration” can be defined so widely, it will not be the tight procedure he pretends it will be.

  The Minister is giving examples to deflect attention from what he is doing. Let us judge this against our own standards and needs. We have had serious problems with tribunals arising out of a culture of secrecy about decisions and we must lay those problems to rest. Rather than looking for examples to bolster the wrong position he is adopting, the Minister should look at this honestly and ask if Ireland needs to bring this code [98] of secrecy, this omertà, into our system of Government. We do not need it and citing obscure examples from other countries will not convince me it is needed. We have had five years of good operation of the Freedom of Information Act and there is no evidence of damage being done to justify these changes. We should allow the Act to continue working successfully as it has done in the past.

  Mr. Boyle: The Minister has not answered my question. He has not cited one example—

  An Leas-Cheann Comhairle: The Deputy will be able to reply in due course to the debate on this amendment. I assume he moved the amendment.

  Mr. Boyle: Yes, I presumed this was the second round of contributions.

  An Leas-Cheann Comhairle: Other Deputies are offering; the Deputy is not replying.

  Mr. Boyle: I have two minutes and a final reply.

  An Leas-Cheann Comhairle: Yes.

  Mr. Boyle: The Minister did not respond to my question in his reply. He has not given one example of a country where existing freedom of information legislation has been made more restrictive. The argument constantly made by the Government relates to common law systems and cites Canada, Australia and New Zealand. As Deputy Bruton said, the harm-based measure is most common in these systems, particularly in New Zealand, not the class-based measure. The Minister's boast that we will continue to have a liberal system after this Act is implemented is untrue and stretches credibility.

  The Minister restricted his contributions to common law systems but he totally eschewed the Scandinavian models, which are far ahead of us in liberality. It is also a fact that Canada and Australia are reviewing their legislation to make it less restrictive. The Minister's statement that we are making our situation the same as everyone else's when everyone else is making their legislation better is an insult to the House and to our citizens. He is totally ignoring the experience of the Information Commissioner in this area and pouring cold water over necessary amendments forged on the basis of that experience.

  Ms Burton: The Minister cited the example of Australia but he should know the amendments made to the Australian legislation are widely regarded there and in other countries as significantly shutting down access to freedom of information. In his remarks on the Australian legislation the Minister referred to the Secretary General to the Cabinet being able to certify the deliberative process.

  This legislation, in a departure from what the high-level group recommended, provides that the [99] certification process is not confined to the Secretary General to the Cabinet. According to section 14, the Secretary General of any Department can certify the deliberative process without end – there are no time limits whatsoever. A Secretary General can certify the deliberative process not just in relation to his or her Department but in relation to any other Department also.

  The most odious sections of the Bill are sections 13 and 14, which deal with the extension of the concept of Government to everybody and anybody and the certification process. What has been done to the freedom of information legislation in Australia has been much criticised as extremely damaging but the Minister has gone much further with this legislation. He has also gone further than the high-level group's report and now we have a process opening up which is effectively a secret Government.

  All the Secretary General has to do under the new Act is certify and give the number of certificates. He or she does not have to give the topics of the certification process or the members of the Cabinet committee or group of officials who may be part of that deliberative process. This is serious interference and the amendments introduced by the Minister on Committee Stage have made the Bill a much more secretive and destructive measure.

  Caoimhghín Ó Caoláin: When replying the Minister stated that the amending legislation was bringing the existing Act “up to a comparable standard”. The reality is that we recognise, as does the Minister, that he is bringing the Act down to a comparable standard rather than up to best practice. The high-level review group looked at international experience and referred to the British legislation when examining some aspects of our existing Act; this is reflected in some of the amendments which were presented. British legislation is inferior to ours and has always been recognised as such. The Minister should be ashamed of bringing down our standards. We have legislation in place of which he, like everyone else, should be proud.

  Important legislation will be emasculated through the Minister's refusal to accept the thrust of the amendments, which seek to guarantee the right of access not only of individuals, but also of those who would represent them. He went some way towards accepting this assessment in relation to parents, siblings and representatives of the deceased in one of the small concessions he made on Committee Stage.

  Given the reluctance of many of those within the named bodies under the Freedom of Information Act to fully co-operate with the legislation and the minimalist attitude many of them adopt, there are genuine concerns that advocacy groups will be faced with denial and refusal to release information. As I have stated before, the proposals will tie the Government in legal knots. [100] Rather than facilitating the better working of Government, the Minister is introducing mechanisms which will act as trip wires along the way and into the future.

  All the changes being introduced will be undone at some point in the future. This Minister will not do so, but it will be done. Irrespective of the raison d'être behind the approach to the legislation, namely, the fast approaching 21 April deadline, everything the Minister seeks to conceal will ultimately be revealed.

  Mr. McCreevy: Deputy Burton referred to the revisions made by the Australians to their freedom of information legislation. The question must be asked as to why they felt it was important to so do. They introduced a high level of charges and made some significant changes.

  It is interesting to note that the United Kingdom Act will not come into force until January 2005. It could not, therefore, be clear to Deputy Richard Bruton how the harm test in its sections will be interpreted.

  Mr. R. Bruton: The United Kingdom Act contains harm tests.

  Mr. McCreevy: There is a mandatory class exemption in the United Kingdom legislation. For example, information will be exempt if it is confidential information obtained from the State. The UK legislation should not be held up as an example in terms of our legislation.

  I wish to comment on a point Deputy Burton made on the last amendment and on previous occasions. The notion that the Freedom of Information Act 1997 grew out of the activities of Charles J. Haughey is a travesty of the historical record. Freedom of information legislation was in place in a number of countries prior to 1997 and the introduction of similar legislation here had been a long-standing goal of the Labour Party and others. The Act had nothing to do with the activities of Charles Haughey. It is ludicrous to think that, despite all that has emerged from the tribunals and other fora, freedom of information legislation, regardless of its format, would have had a bearing on some of the activities alleged to have been committed by the former Member of the House in question.

  Mr. Boyle: We seem to have arrived at a position in which irresistible force meets immovable object. These are among the most innocuous of the Report Stage amendments tabled by the Opposition. The Minister's adamant refusal to accept they have any merit does not bode well for the rest of the process in which we have to engage for a further hour and a half. Short of being shown the Attorney General's advice, I do not accept the validity of his arguments or the basis on which they have been made. I ask him to show some degree of flexibility on the other amendments. None of us can take pride in this Bill, [101] which is likely to be enacted, as it does not serve the people who elected us.

  Amendment put and declared lost.

  Ms Burton: I move amendment No. 4:

    In page 5, between lines 7 and 8, to insert the following:

      “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 13) shall not come into operation until after the completion of the said review.”.

  Amendment put and declared lost.

  An Leas-Cheann Comhairle: Amendment No. 5 is out of order.

  Amendment No. 5 not moved.

  Caoimhghín Ó Caoláin: I move amendment No. 6:

    In page 5, to delete lines 21 to 23.

[102] This amendment has been tabled to reflect the concern that the Bill limits the definition of the term “factual information” to statistical or empirical data. In its submission to the Joint Committee on Finance and the Public Service, the Irish Council for Civil Liberties highlighted its concerns about this element of the amending legislation. Given the significant change it represents and its potentially severe impact on the current workings of the principal Act, the ICCL has suggested that limiting what is considered factual – and therefore accessible – material to purely empirical or statistical data could greatly increase the categories of information which will be denied or refused to an inquirer on the grounds that they would be exempt from the Act. I share the ICCL's view that this change goes to the very heart of the current statute and will result in large areas of policy being deemed outside the operation of the Act.

  As I indicated in my earlier contribution, the fact that the high-level review group paid particular attention to the British legislation and cites the British Act, which is by all interpretation weaker in its standards of right to information, is, therefore, a fundamental weakness in the group's approach. Rather than looking for best practice and examining examples arising from experiences in other jurisdictions which would better inform, the high-level review group seems to have confined itself to examining the British Act and cites it accordingly. It should have looked much further afield and informed itself using experiences in this area obtained in a wide international field. Accordingly, I seek the deletion of lines 21 to 23 on page 5 and that the current reference in the substantive Act stands. I ask the Minister to accept the amendment.

  Mr. McCreevy: I will not accept the amendment which would result in the removal of the definition of the term “factual information” from the Bill. The matter was debated at considerable length on Committee Stage when I explained that the provision had its origins in a concern expressed by the high-level group that there was some misunderstanding in this area. The definition is intended to clarify the matter and is based on the Attorney General's advice that factual information comprehends things that are known to have occurred, to exist or to be true in the sense of being tangible facts and figures.

  Caoimhghín Ó Caoláin: I disagree. There is a body of information from respected, informed opinion within our society that suggests what is intended is a further restriction on access to information. As with so much of the amending legislation, it offers a crutch to those within the system who want to deny or refuse the release of specific information to an individual, the representative of an individual or media interests.

  I refer to the limiting of the definition of “factual information”. It comes as no surprise that the Government's legal advice supports such a view. [103] I expect this is not only the Minister's opinion but is also the result of Cabinet deliberations, of which the Attorney General is a component. This is another element of the overall thrust of the Government's effort to curtail access to information and to restrict the rights of the individual, as enshrined in the original Act and its various extensions in terms of bodies to whom it applies over the years.

  Question, “That the words proposed to be deleted stand”, put and declared carried.

  Amendment declared lost.

  Mr. Boyle: I move amendment No. 7:

    In page 5, between lines 23 and 24, to insert the following:

      “ ‘person' shall be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as well as an individual;”.

  Amendment put and declared lost.

  Ms Burton: I move amendment No. 8:

    In page 5, 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.

  Caoimhghín Ó Caoláin: I move amendment No. 9:

    In page 5, between lines 23 and 24, to insert the following:

      “ ‘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;”.

  Amendment put and declared lost.

  Mr. Boyle: I move amendment No. 10:

    In page 5, between lines 28 and 29, to insert the following:

      “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 deter[104] mines in relation to freedom of information usage in the relevant year.'.”.

In his valedictory commentary on the legislation, the Information Commissioner suggested that the following key requirements, which I have attempted to put together in the amendment, should be inserted in amending legislation: an obligation on the Minister for Finance to collect, collate and publish within two months of each calendar year relevant statistics relating to freedom of information usage in the relevant year and an obligation on public bodies to provide the Minister with such statistics and in such manner, including timescale, as the Minister determines in regard to freedom of information usage in the relevant year.

  This amendment and similar amendments resulted in considerable debate on Committee Stage. The Minister argued that existing information statistics on usage were sufficient while Opposition members argued they were not. It was not a case of a Monty Python sketch with us saying “Yes” and the Minister saying “No”. The information presented in the various reports is nothing less than a listing of numbers and, if information is to have validity in terms of the success of freedom of information, it must be linked to the type of requests made and the circumstances in which they are made with some form of codifying in the various Departments regarding whether requests are responded to in given timescales, the number of refusals and why.

  Some of this information is available in tabular, numerical form but that is an empty presentation of information. It is also a format that the Information Commissioner does not consider to have a great deal of significance or value. The amendment, in these terms, should be acceptable to the Minister if it is the intention of the amending legislation to make information more widely available and to make its usage by the citizenry more comprehensible in terms of its analysis. Otherwise, it is part of the Minister's attempt to drag the legislation down to a level where it has little practical use for many people, particularly those of us who aspire to a society based on freedom of information principles.

  Caoimhghín Ó Caoláin: I join Deputy Boyle in recommending the amendment to the Minister. The amendment was also recommended by the Information Commissioner who, undoubtedly, had full access to the Department's publication, which the Minister happily quoted at some length on Committee Stage. However, the commissioner recognised there is an undoubted deficit that needs to be addressed in terms of the collation and presentation of information on the workings of the original Act. The operation of the Act must be kept under constant review and accurate and detailed information on its operation is essential. Despite the Minister's efforts to dissuade Opposition Members on Committee Stage, there is still a considerable argument to support the Information Commissioner's contention and we hope [105] the Minister will accept the amendment, which is minor in comparison to much of what is proposed in the Bill.

  Mr. R. Bruton: I support the amendment. I ask the Minister to extend the certification reporting that he has introduced in the legislation to include the subject matter that has been certified as secret by the Secretary General to the Government in the case of committees or the Secretaries General of individual Departments in the case of the deliberative process. This issue was debated at considerable length on Committee Stage. The Minister sought to give assurances that there would be other ways to obtain such information but he did not succeed in convincing anyone that these ways would be open, transparent or easily accessible. He suggested that Members who wanted to know what was certified would have to table parliamentary questions on a regular basis to ascertain this information.

  I remind the Minister of Deputy McDaid's comments on Committee Stage of the original Bill in 1997. He stated: “Any information that is exempted must be included in a confidentiality list with a description sufficient to enable the public to challenge the exclusion in the list.” Deputy McDaid was speaking then on behalf of the Fianna Fáil Party and he had the right idea. The Minister has introduced a half-hearted amendment that has only served to reveal the extent of the secrecy he intends. I assumed the Secretaries General would automatically list anything they certified and it would become a matter of public record. It was only when the Minister brought in his amendment to provide that only the number of such certificates would be recorded that the sheer scale of the secrecy he has in mind struck home. It is very important that if these extraordinary powers of certification are to come into operation, without the right of review or appeal or any test of reasonableness, at the very minimum the public should see what is being certified. At least there should be an awareness that this protection was being imposed and that citizens were being denied access to information. There could be an insistence that it would be removed as soon as either the deliberative process or the work of the committee had been concluded.

  Ms Burton: In supporting this amendment, I wish to refer to the Minister's defence of Mr. Charles J. Haughey. I mention Mr. Haughey's name in the context of this discussion because I believe many younger people have barely heard of him, other than knowing he was a rather controversial Taoiseach at a certain stage. Part of his contribution was to savage the health services in 1987 and the dilemma we face today is directly his legacy. Mr. Haughey, in the estimation of many people, suffered from folie de grandeur, in which he really believed that, as a Napoleon of the Irish political scene, he could walk on water.

[106]   An Leas-Cheann Comhairle: Is this relevant to the amendment?

  Ms Burton: Yes, it is. Mr. Haughey inspired both fear and respect and had a very secretive approach to everything. In relation to the beef tribunal, in which Mr. Haughey and his politics were centrally involved, together with various other Fianna Fáil icons such as Mr. Ray Burke, the Chief Justice said that if it had been possible to elicit answers and obtain the appropriate information, the appalling vista of the beef tribunal, which cost the taxpayers of this country £75 million, would not have been necessary. This amendment is a modest attempt to encourage—

  Mr. McCreevy: Deputy Burton is quite wrong in referring to—

  Ms Burton: I have the floor, a Leas-Cheann Comhairle. May I have the protection of the Chair from the Minister's interruption? This amendment by Deputies Boyle and Ó Caoláin is a modest attempt to reinstate a culture of publication of information and statistics. It is very worthy of support. In sections 13 and 14 of this Bill, the net of secrecy has been cast far and wide. We will now have secret committees of Government, unnamed, untitled and unknown as to their subject. In relation to the deliberative process, we will have secretive certification, unnamed and untitled, by Secretaries General of Departments. The lack of capacity of the Opposition, the media and the general public to know very much about the operation of Government, except as the Government may choose to tell us through the army of spin doctors it employs, will effectively make the work of the Opposition, the media, public bodies and citizens' groups much more difficult. I am happy to support this amendment as a small step towards retaining some level of public accountability in relation to freedom of information.

  Mr. McCreevy: I am not accepting this amendment. On Committee Stage, I explained the reason I considered that a prescriptive obligation on the Minister for Finance to collect various statistics, and on public bodies to provide such statistics to the Minister, was unnecessary. Comprehensive statistics on usage of the FOI Act are already 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. Contacts have 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. I gave chapter and verse on Committee Stage as to the details contained in the report of the Minister for Finance on the Freedom of Information Act. I am satisfied the statements in the annual report are comprehensive and give a very full insight into the [107] usage of FOI in each of the 370 bodies covered by the Act.

  In the interests of historical accuracy in relation to the beef tribunal report prepared by the late Mr. Justice Liam Hamilton and in fairness to Mr. Haughey and others, the passage referred to – if memory serves me correctly, as I believe it does – was in the detailed back-up documentation relating to a parliamentary question answered by Mr. Ray Burke, not by Mr. C. J. Haughey.

  Ms Burton: On the basis of the Minister's proposals in the Bill, the back-up documentation would not be available.

  Mr. McCreevy: In fairness to the former Deputy C. J. Haughey, Deputy Burton's reference to him, in the context of the Hamilton report of the beef tribunal, is neither historically nor factually correct.

  Mr. Boyle: The Minister is making the same argument. The information in the annual report is simply a listing of numbers. There are far better examples of annually collated information in other areas. For instance, the Ombudsman's report goes into far greater detail as to the reasons particular complaints were made. Information collected by the Department of the Environment and Local Government in terms of issues such as water and air pollution licences and breaches of same, go into quite specific detail as to breaches by local authorities, including the nature of such breaches, the period over which they occurred and the identity of complainants. We are simply asking that whatever information is sought under FOI is set out in a statistical format that is user friendly and has real meaning in terms of access and transparency. What the Minister proposes to continue is nothing but a meaningless set of statistics. I would argue that we have more than enough meaningless statistics, particularly in the Minister's Department.

  Caoimhghín Ó Caoláin: We could be forgiven for taking the view that we are beating our heads against a brick wall when such a simple amendment as this is required and the Minister continues, stoically, to refuse to give ground. So much for our hopes when we come to more substantive areas of the Bill if, indeed, the time provided allows. Although there is an unchallengable logic to the arguments we are presenting in support of this amendment, the Minister is rejecting it. That is most regrettable. I again commend the amendment to the Minister in a final appeal.

  Amendment put and declared lost.

  Ms Burton: I propose amendment No. 11:

    In page 5, between lines 28 and 29, to insert the following:

      “3.–Section 3 of the Principal Act is amended in subsection (1) by the addition [108] 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,'.”.

The purpose of this amendment is to give effect to proposals made by the Information Commissioner. This would allow additional Acts to be added to the Third Schedule by regulations, thereby enabling such Acts to be overridden by this Act, rather than being in conflict with it. This amendment is clearly desirable. It would mean that, when legislation is introduced, it would be automatically subject to the Freedom of Information Act. The Government, during its pathetic defence of its Bill, has been at pains to point out that the Act has been extended to quite a number of public bodies, as was required by the legislation which the Labour Party introduced. The proposal by the Information Commissioner would make such a move automatic. In terms of the Information Commissioner being an independent office holder, the proposal being put forward is sensible and reasonable. It involves no discomfort to the Government, Departments or civil servants – it simply makes sense in the context of the commissioner's experience of the working of the Act. The Minister's rejection of it is part of the general disdain he has for the Information Commissioner's office.

  With the passage of this Act, I wonder if it will be worthwhile speaking in broad terms about an Information Commissioner as that office pertains to the working of the Government and Departments. I foresee a time in the future when recalcitrant heads of other bodies, such as health board and educational institutions, may well seek to come back under the ambit of Departments in order to get the secrecy and protection the Minister is introducing in dismantling this Act.

  Mr. R. Bruton: Will the Minister make available a consolidated version of this Act incorporating new amendments so that the public may have access to an Act that can be read from start to finish? It is an important Act and should not remain in an unconsolidated state for any period of time.

  Mr. McCreevy: One of the great innovations introduced by the previous Administration was the restatement process. This process means that when a Bill is amended, rather than going through a process of consolidation, a process of restatement takes place. This restates the principal Act in the format following amendments. This was introduced on the advice of the former Attorney General, Deputy McDowell. The restated Act will be available and will be easily understood.

  I will not accept this amendment. On Committee Stage, I said the principal Act has given a [109] joint committee of the Houses a specific function in the reviewing of secrecy provisions in other enactments. It would not be appropriate for the Minister for Finance to interfere with the joint committee. I also explained that the advice of the Attorney General was against this amendment.

  Amendment put and declared lost.

  Ms Burton: I move amendment No. 12:

    In page 5, to delete lines 29 and 30.

The purpose of this amendment is to delete the section whereby, from now on, heads of sections and senior civil servants will no longer have to place notices in Iris Oifigiúil. The thrust of this Bill, and the amendments the Minister introduced on Committee Stage, show the intentions of the Government and the new reign of secrecy it proposes. The former requirement of putting material into Iris Oifigiúil will now be suspended. In the Alice in Wonderland-type world the Government is creating in sections 13 and 14, the definition of “Government” will be extended not just to Ministers and Ministers of State, but to advisers – including eminent people like Senator Mansergh in his time and also constituency advisers – and any other person or group of people. This latter group could include consultants or economic advisers, we have no idea – it could be anybody. This will no longer have to be notified in any way. All that will happen under this Bill is a certification process. All that has to be published is the number of certificates issued. There is no title to explain what the committee is about, nor is the membership of the committee elaborated on.

  When it commented on the deliberative process, the high level group of civil servants wanted to expand the notion of the harm test. The group did not seek to go as far as the Government has gone in this Bill. The Government now proposes to give each secretary general the right to certify, without end, the deliberative process, not only for his or her own Department but for other Departments. It will be possible for the Department of Foreign Affairs to cross certify much deliberation from a range of Departments as impacting on international affairs or other issues and rendering it secret for an unlimited period.

  On Committee Stage, the Minister argued that Iris Oifigiúil was irrelevant to many people. The average punter on Grafton Street will never have heard of Iris Oifigiúil. Why should they have? Nonetheless, members of the Oireachtas and the media know what Iris Oifigiúil is and know notices published in it are often important and significant and give indications that ought to be raised here or by the media.

  This section of the Act is being dismantled. While the Minister's explanation was benign, in the context of sections 13 and 14 of this Bill, the Labour Party requests the Minister to leave the notification process in Iris Oifigiúil intact. Such notification may be the only way we will have in [110] the future to access information about committees and deliberations of Government.

  Caoimhghín Ó Caoláin: Of all the recommendations of the Information Commissioner, it is interesting that this is the one the Minister has decided to accept. The Minister has set aside the other important and valuable recommendations of the commissioner, while Opposition Deputies argue they should be accepted. I have a difference of opinion with the Information Commissioner on this. It allows the Minister to drop part of what is currently required in the notification process and this speaks volumes.

  The amending Bill proposes to delete section 4 (5). This requires the head concerned to give notice of a delegation, revocation or amendment under subsection (3) to be published in Iris Oifigiúil within four weeks of the issuing of the delegation, revocation or amendment. What facilitation does this provide? It is a further curtailment on important information. Deputy Burton referred to the issue of certification by secretaries general regarding elements within the deliberative process. She instanced two Departments. I will instance the most pertinent example, as reflected in the recent past, of the secretary general in the Department of Finance vis-à-vis important decisions in the Department of Health and Children.

  This amendment contains a simple request from Opposition Deputies. The Minister may well hold on to the crutch of the Information Commissioner to argue about the use of Iris Oifigiúil. Iris Oifigiúil is referred to by Deputies and people who work within the Houses of the Oireachtas and is a vehicle of information from Government. It is the official Government information publication. I have no doubt it informs members of the media. Yet, the Minister is happy to adopt this singular exception from the Information Commissioner and to reject all that was good and valued in his contribution. This is most regrettable and I urge the Minister to reconsider and allow the current position to stand.

  Mr. McCreevy: I will not be accepting this amendment which would result in a requirement for notice of delegations made under section 4 of the main Act by the head of a public body to be published in Iris Oifigiúil. I am satisfied that the very wide range of information made available by my Department and by public bodies generally makes this requirement redundant. The suggestion that the requirement should be removed came from the Information Commissioner. I agree with his view that it is of questionable value. In my stroll through life I have made the observation that most people, politicians and journalists, often agree with people whose views coincide with theirs.

  The type of information about delegations made by the head of a public body only contains information regarding the grades of decision makers and reviewers in public bodies. It is of no [111] practical benefit to members of the public. The most useful information for members of the public is a list of FOI officers in all 370 bodies. That information is available in my Department. The list contains the names, addresses, telephone numbers, fax numbers and e-mails of all freedom of information officers.

  Ms Burton: I regret the Minister is rejecting the amendment. It is interesting that when the National Union of Journalists came before the committee, it specifically objected to the removal of this section on the basis that heads of public bodies no longer have to inform the public to whom they are delegating FOI decision making authority. The public, therefore, effectively has no way of knowing what is going on.

  During Committee Stage the Minister went on at length about no longer needing to create a State Directory. That book which was compiled on a three year basis was of significant value to academics, researchers and the media who know how to use such information tools. The Minister's refusal to accept this amendment is regrettable.

  Caoimhghín Ó Caoláin: Predictably, the Minister referred to the position of the Information Commissioner in this instance. He will not be referring to him too often in relation to the raft of amendments we hope to address this evening.

  There is no sound reason for taking this step. It is a whim. It can only fit into the category of seeking to shroud information, to deny official access to the deferral of responsibility by the notifying official. If Iris Oifigiúil is as worthless and pointless an organ as the Minister suggests, why is he not addressing it in its entirety?

  Mr. McCreevy: For Deputy Ó Caoláin's information, this is not the only amendment which reflects the Information Commissioner's suggestions. At least eight of his suggestions are contained in the Bill.

  Question, “That the words proposed to be deleted stand”, put and declared carried.

  Amendment declared lost.

  Mr. McCreevy: I move amendment No. 13:

    In page 6, before line 1, to insert the following:

      “4.–Section of the Principal Act is amended by the addition of the following subsection:

        ‘(11) (a) In subsections (4) to (6), “commencement of this Act”, in relation to local authorities and health boards, means 21 October, 1998.

        (b) In subsection (9), “person” does not include a public body or any other body, organisation or group that is specified in clauses (a) to (g) of subparagraph (5) of [112] paragraph 1 of the First Schedule and does not stand prescribed for the time being for the purposes of that subparagraph.'.”.

  Amendment agreed to.

  Ms Burton: I move amendment No. 14:

    In page 6, to delete lines 1 to 9.

This amendment was strongly supported by the National Union of Journalists during their presentation to the committee. It proposes the deletion of the section which deals with the withdrawal of requests. That has already been done informally. The process has developed whereby when a person makes a request for information under FOI and that request is badly or poorly drawn up, the freedom of information officer, the decision maker, advises the requester that the information requested is poorly drawn or that its parameters are too wide. Informal discussions then take place between the requester and the information officer on what is the net point of his or her interest. That process has been useful.

  The NUJ spoke during their presentation of the work it had done, voluntarily, for the Department to assist it with training in relation to the development and use of the Act in the public service. This provision has been described by the NUJ as unnecessary. On the question of sensitive material, the question arises as to whether the balance will rest excessively with officials dealing with information requests rather than it lying with the public. There is no reason requests from the public for information should not be met. The public service and freedom information officer should endeavour, as far as possible, to facilitate such requests.

  Caoimhghín Ó Caoláin: Are we dealing with the amendment relating to the replacement of the words “contain or relate to”?

  Mr. McCreevy: No.

  An Leas-Cheann Comhairle: No, this amendment seeks to delete a whole section.

  Mr. McCreevy: This amendment relates to section 4 and the withdrawal of a request to allow it to occur.

  Caoimhghín Ó Caoláin: The Bill is drafted differently to that which we addressed on Committee Stage. I will await the Minister's reply and will respond accordingly.

  Mr. McCreevy: I will not be accepting this amendment which seeks to delete section 4. Section 4 recognises the fact that FOI requests are withdrawn. This is a sensible provision. The section provides that a person may withdraw a request and not that he or she must do so. Similar provisions are contained in sections 14 and 34 of the 1997 Act.

[113]   Ms Burton: The good practice of informal consultations taking place between deciding officers and requesters has greatly assisted the fair operation of the Act to the benefit of the person seeking the information. The whole spirit of the original Act was to make information available to the public unless there is a clear demonstration that the giving of such information would cause harm. The Labour Party listened to the presentation by the National Union of Journalists and we concur with its view on this matter.

  On the charging regime the Minister's Department is now introducing, I gave an example earlier of someone making a request for briefing documents in respect of the advice given to the Minister on cutting back on public expenditure. The documentation supplied as pertaining to this request was very wide and included dozens of parliamentary questions, advices given to the Minister by various sources and various memoranda to Government which were listed as being out of bounds under the current Act. The person making the request was requested by the Department to pay a fee of €3,000 and a deposit of approximately €500 even before the officials did any work. In future, if the person who made the request fails to pay such a deposit, all subsequent requests by him or her under the FOI Act will be disbarred. That is an important aspect, particularly in terms of a voluntary or community group which does not have substantial means. In the event of the request being withdrawn, will the onerous deposit of €500 be refunded because there may be groups in Carrickmacross and elsewhere which might have reason to look to the Freedom of Information Act? This is potentially a very onerous section and I am not sure if the Minister has thought out the implications of what he is doing.

  Caoimhghín Ó Caoláin: I will be brief. The absence of time to properly re-jig my documentation has left me at somewhat of a disadvantage. Nevertheless, I recognise that section 4 represents a further restriction and is a significant weakening of the original Act. It is clear from the commentary of the Information Commissioner that this is the case and that information previously released would now be withheld. I support the amendment in line with Deputy Burton and I will let the matter stand.

  Mr. McCreevy: This amendment would have no impact on the good practice of FOI in the Department or public bodies. The charge the Department has levied in the case referred to by Deputy Burton was introduced under existing legislation.

  Ms Burton: I know that, but the point of the amendment is that a person who makes a request may withdraw the request. If such a person has already paid a significant deposit, will the Department undertake to refund that deposit?

[114]   Mr. McCreevy: The fee is to cover the large number of hours needed to gather the information. If the Department of Finance has gone to the trouble of getting all the information, and the person who made the request decides not to go ahead with the request, he or she will not get the rest of the information and will not get a refund because the money will have been used up.

  Ms Burton: They will be disbarred in future from further freedom of information requests. That will be a barrier to community and voluntary organisations legitimately pursuing interests under the Freedom of Information Act in cases where they may cast the net too wide because they do not have the same experience as that of the Minister or his civil servants. The Minister has not thought out this measure.

  Question, “That the words proposed to be deleted stand”, put and declared carried.

  Amendment declared lost.

  An Ceann Comhairle: Amendment No. 15 is in the name of Deputies Burton and Ó Caoláin.

  Ms Burton: I move amendment No. 15:

    In page 6, to delete lines 10 to 37.

This amendment seeks to delete the section which deals with three additional classes of information. Effectively, the public interest test is being significantly extended and the effect of this amendment is to make the Act more restrictive than is currently the case. The Act was introduced in the context of bringing in greater openness, transparency and accountability in contrast with the GUBU years, to which the Minister has already referred. It is sad that we appear to be turning the clock back in this Bill and shutting out the light in terms of our approach to freedom of information. This is a section to which organisations like the NUJ and others which appeared before the committee and which contacted Opposition Deputies had a legitimate objection. This amendment is brought forward in light of the experience of those who have used the Freedom of Information Act successfully. A glance at today's newspapers will reveal a number of interesting stories which throw light on the workings of Government but which may be closed down by this Bill in the future.

  Caoimhghín Ó Caoláin: I support the amendment.

  Mr. McCreevy: I do not propose to accept this amendment which would mean the deletion of section 5. This section provides that section 8 of the Principal Act is amended by substituting the words “Subject to the provisions of this Act, in deciding” for the words “in deciding” in subsection (4)(b) as set out in section 6.

  As it is presently worded, section 8(4)(b) of the Principal Act provides in unqualified terms that [115] the motive of the person making the request cannot be considered when deciding whether to grant or refuse a request for records. This does not sit easily with section 10(1)(e) whereby a request can be refused if, in the opinion of the head of a public body, the request is frivolous or vexatious. The inclusion of “Subject to the provisions of this Act” is intended to ensure consistency between section 8(4)(b) and the Act generally.

  Section 5 also contains a consequential amendment to provisions contained elsewhere in the Bill which expand the number of exemptions that enable a public body to refuse to confirm or deny the existence of a record. I explained in some detail on Committee Stage why the potential for very specific requests to undermine protections for third party information made it necessary to expand the number of such exemptions.

  Ms Burton: Those people who have used the Act have indicated that the previous section of the Bill was one of the reasons most often cited for refusing information requests. The Minister is now extending that from three to seven classes. Refusing to give the reasons to the person making the request is giving additional discretionary powers to civil servants to refuse information to the public.

  The way the Minister has framed this Bill is an [116] indication of the fundamental philosophy which has informed him. That fundamental philosophy is that the public are to be denied access to information and the process is in the future to be made as difficult as possible. Once the process has been made as difficult as possible, the Minister or his successor from Fianna Fáil or the Progressive Democrats will say that people cannot even use the Act and therefore it is redundant. I am sure in due course we will see a future Minister from Fianna Fáil, or, the absent Progressive Democrats, arguing that in turn will be a reason for moving away from any notion of freedom of information altogether, which is basically what the Minister wants.

  Caoimhghín Ó Caoláin: I apologise for the difficulty. The section numbers have completely changed and it is difficult to reconstruct. What we are looking at is a further restriction. Section 8 of the principal Act is to be amended by section 5 of the Bill which, on Committee Stage, appeared as section 6.

  What is proposed is a concealment of the existence of information sought when a refusal is decided. Why is this necessary? On what basis is this proposal required? Undoubtedly it will have a further negative effect in terms of the right to access information. The Minister has not given a logical argument to support his proposal.

  Question put: “That the words proposed to be deleted stand.”

    Ahern, Dermot.

    Ahern, Michael.

    Ahern, Noel.

    Brady, Johnny.

    Brady, Martin.

    Brennan, Séamus.

    Browne, John.

    Callanan, Joe.

    Callely, Ivor.

    Carty, John.

    Cassidy, Donie.

    Collins, Michael.

    Cooper-Flynn, Beverley.

    Coughlan, Mary.

    Cregan, John.

    Cullen, Martin.

    Curran, John.

    Davern, Noel.

    de Valera, Síle.

    Dempsey, Noel.

    Dempsey, Tony.

    Dennehy, John.

    Devins, Jimmy.

    Ellis, John.

    Finneran, Michael.

    Fitzpatrick, Dermot.

    Fox, Mildred.

    Grealish, Noel.

    Hanafin, Mary.

    Haughey, Seán.

    Hoctor, Máire.

    Jacob, Joe.

    Keaveney, Cecilia.

    Kelly, Peter.

    Killeen, Tony.

    Kirk, Seamus.

    Lenihan, Brian.

    Lenihan, Conor.

    McCreevy, Charlie.

    McDaid, James.

    McDowell, Michael.

    McEllistrim, Thomas.

    Martin, Micheál.

    Moloney, John.

    Moynihan, Donal.

    Moynihan, Michael.

    Mulcahy, Michael.

    Ó Cuív, Éamon.

    O'Connor, Charlie.

    O'Dea, Willie.

    O'Donnell, Liz.

    O'Flynn, Noel.

    O'Keeffe, Batt.

    O'Keeffe, Ned.

    O'Malley, Fiona.

    O'Malley, Tim.

    Parlon, Tom.

    Power, Peter.

    Power, Seán.

    Roche, Dick.

    Sexton, Mae.

    Smith, Brendan.

    Smith, Michael.

    Treacy, Noel.

    Wallace, Dan.

    Wallace, Mary.

    Wilkinson, Ollie.

    Woods, Michael.[117]


    Boyle, Dan.

    Broughan, Thomas P.

    Bruton, John.

    Bruton, Richard.

    Burton, Joan.

    Connaughton, Paul.

    Connolly, Paudge.

    Crawford, Seymour.

    Cuffe, Ciarán.

    Deasy, John.

    Deenihan, Jimmy.

    Durkan, Bernard J.

    English, Damien.

    Enright, Olwyn.

    Gilmore, Eamon.

    Gormley, John.

    Harkin, Marian.

    Healy, Seamus.

    Higgins, Joe.

    Higgins, Michael D.

    Hogan, Phil.

    Howlin, Brendan.

    Kenny, Enda.

    Lynch, Kathleen.

    McGrath, Finian.

    McGrath, Paul.

    McManus, Liz.

[118]     Mitchell, Gay.

    Mitchell, Olivia.

    Morgan, Arthur.

    Murphy, Gerard.

    Naughten, Denis.

    Neville, Dan.

    Ó Caoláin, Caoimhghín.

    Ó Snodaigh, Aengus.

    O'Keeffe, Jim.

    O'Shea, Brian.

    O'Sullivan, Jan.

    Pattison, Seamus.

    Penrose, Willie.

    Perry, John.

    Quinn, Ruairí.

    Rabbitte, Pat.

    Ryan, Seán.

    Sargent, Trevor.

    Sherlock, Joe.

    Shortall, Róisín.

    Stagg, Emmet.

    Stanton, David.

    Timmins, Billy.

    Twomey, Liam.

    Upton, Mary.

    Wall, Jack.


Tellers: Tá, Deputies Hanafin and Moloney; Níl, Deputies Durkan and Stagg.

  Question declared carried.

  Amendment declared lost.

  An Ceann Comhairle: Amendment No. 16 arises out of Committee Stage proceedings. Amendments Nos. 17, 18 and 19 are related, and amendments Nos. 16 to 19, inclusive, may be discussed together by agreement.

  Mr. Boyle: I move amendment No. 16:

    In page 6, to delete lines 38 to 44 and in page 7, to delete lines 1 to 24.

I wanted to welcome the Progressive Democrats to the Chamber, but they have decided to leave again.

  Deputies: No, they have not.

  Mr. McDowell: Anything for a bit of light amusement.

  Mr. Boyle: We have missed the Minister's party greatly throughout Report Stage, on Committee Stage, at which none of its representatives was present, and on Second Stage, at which very few contributions were made by them. His party should be very proud when they meet at the weekend.

  An Ceann Comhairle: I am not sure that the Deputy's contribution is relevant to amendment No. 16.

  Deputies: The Minister should not go.

  Caoimhghín Ó Caoláin: He cannot take it.

  Mr. Boyle: This section has to do with being frivolous and vexatious, which typifies the approach of the Progressive Democrats to this Bill.

  In amendment No. 16, I seek to remove all references to the proposed amendment to section 10 of the principal Act, mainly because the Information Commissioner said in his commentary that in his experience, there has been a small number of freedom of information requesters whose behaviour can be regarded by certain public bodies as frivolous or vexatious, and his experience of review applications shows that there are even fewer.

  What the Minister is proposing, in a way that is quite insidious, is unnecessary. He is trying to introduce three sets of controls that will further limit the ability of individuals to ask whether information can be provided to them.

  He is introducing a subjective test by the information officer or the head of the Department as to whether the information being sought will require a great deal of work. Against the principle of natural justice, the head of a Department can regard as frivolous or vexatious a large number of requests coming from one person regardless of whether the individual requests have validity in their own right. This provision might be open to constitutional challenge. As in other areas of law, it is only possible to challenge the activity of the person not the person's record of seeking information at any given time. The Minister is leaving himself open to challenge by specifying that each individual request will not be treated equally if someone has not paid the fee for a previous request.

[119]   On each of these grounds, all of which have been described as unnecessary by the Information Commissioner, the Minister is introducing a series of controls only for the benefit of heads of Departments and all at the expense of people's right to access information. I cannot see under any heading of logic why the Minister wants to introduce such a measure. I can only presume it is in keeping with the philosophy behind this Bill, which is an attempt to make sure we do not have freedom of information legislation that is worth having.

  Caoimhghín Ó Caoláin: I wish to speak to each of the grouped amendments Nos. 16 to 19 and specifically to my amendment No. 17. This section in the amending legislation seeks to allow for the refusal of information to someone who has previously been a requester and who has not paid the fee prescribed. This is an injustice and a further barrier to access to information. As I argued on Committee Stage, a person may have a genuinely sustainable reason for refusing to pay at any point in time. Each request should be judged on its own merit. To introduce a further restriction, barrier and penalty on anybody who has refused to pay previously is not acceptable.

  On Committee Stage, the Minister failed to make the distinction between a previous failure and persistent failure and sought to equate them. In reality there is a marked difference. Somebody who has a previous failure may well be a genuine requester at any future time. A persistent failure comes under the area of frivolous or vexatious requests, which is already amply covered in the substantive legislation.

  Under this Bill, if a person fails to pay a fee on one occasion it may rule him or her out of exercising his or her democratic right to access information ever again, which is clearly discriminatory. It flies in the face of the intention of the substantive Act and is a major retrograde step cutting off once again the individual's entitlement. Therefore, the Minister should delete lines 1 to 3 on page 7.

  Ms Burton: The new arrangements proposed in the Bill are very onerous. As the Minister reminded me today, within the existing Act there are very wide powers available for dealing with vexatious or unreasonable requests. There are also very wide powers to charge requesters in some cases quite prohibitive fees.

  Earlier I gave the example of somebody who recently requested information about the advice given to the Minister about public expenditure restrictions during the run up to the general election. The requester was advised this would take 14 staff members of the Department more than 130 working hours and would involve a cost of €2,900 which the Department would charge the person seeking the information. To proceed with the request the person had to pay a deposit of €500. That is very onerous for a small NGO, com[120] munity organisation or individual. It is also very onerous for freelance journalists who generally have to meet the outlay of their investigations and are only reimbursed in the event of being successful in selling on the story, which they may never even acquire.

  In many instances people make not just one FOI request but have to make a number of requests to different Departments. During the debate we had the example of information on trade with Poland. While the Department of Foreign Affairs excluded the request the Department of Enterprise, Trade and Employment was happy to give it. These are practical matters and in section 6 of the Bill which amends section 10 of the original Act the Minister is introducing a much wider discretionary power of effectively refusing information by making the cost prohibitive.

  Somebody who, having made a request for information, fails to meet the cost and is unable to properly withdraw the request, maybe because it is too expensive, is then effectively disbarred for life under this legislation. The Labour Party has suggested that if the Minister wants to do this, the disbarment should be for a period of 12 months.

  The Taoiseach said today his Department does not charge for requests, unlike the Department of Finance which looks for its pound of flesh. A voluntary organisation, perhaps a community group, under its current officer board could make a request for instance for environmental information about something in the locality from the health board. Perhaps because the organisation was ill advised or was charged an excessive fee, even if it has a new officer board it will effectively be disbarred forever.

  I compliment the parliamentary draftsperson for the table set out on page 7, which is exceptionally clear. This provides that the head may refuse to grant a request on the grounds outlined in section (1)(c) of the table and section (1)(e) widens the frivolous or vexatious grounds. The Information Commissioner in his presentation for the Joint Committee on Finance and the Public Service pointed out that in his view this has not been sufficiently used because Departments were often afraid to use it. If this were used the vexatious example that was dragged out by dozens of Fianna Fáil backbenchers as the reason for the whole change and the desire by the Minister to withdraw freedom of information would not have arisen. The Information Commissioner pointed out that this was entirely unnecessary. The Secretary General of the Department of Enterprise, Trade and Employment, when the high-level group came before the committee, again dragged out this one instance of a person who made numerous requests for information. This was easily dealt with, according to the Information Commissioner, under the present legislation.

  The Minister, however, is introducing a new and draconian regime which will rebound, in many cases, by putting freedom of information [121] requests out of the reach of ordinary citizens. It will damage the trade of journalism in terms of making multiple information requests to get information that should be in the public domain. In particular, it will adversely affect freelance journalists who, if they are not able to afford the large sums being demanded by the Department, may effectively find themselves disbarred for life from utilising the Act.

  If the Minister persists in putting this legislation, unamended, through the Dáil, I hope it will be possible for Uachtarán na hÉireann to refer it to the Council of State. It is a significant roll back on the rights of the citizenry and the free press to call the Government of the day to account. It is also an interference with the rights of Members of the Dáil and the Seanad to information.

  Mr. R. Bruton: I support the amendments. The Information Commissioner correctly pointed out that there are ample powers under the frivolous and vexatious provisions for heads of Departments to refuse freedom of information requests if there is a pattern of this nature. However, this power is not being used. Rather than seek to dismantle the rights of citizens in this way, the Minister should require that heads of Departments use the powers they already have.

  I share Deputy Burton's concern that subsection (f) is particularly poorly drafted. It is, effectively, a charter for catching people out. If they have failed on one previous occasion, they will be caught out. My amendment seeks to redress that and to include tests of reasonableness. The difficulty with this section is the difficulty we have with the entire Bill. Instead of having the heads of Departments assist people in getting information, the philosophy is being changed. The presumption of openness is gone, there is a mechanism to catch people out with their requests and to find ways to refuse them and there is unaccountable certification that closes down access to records.

  The philosophy of the Act is being undermined by this section as well as the others. People will be angry that a valuable asset is being whittled away in one way or another and this Bill is just another element in that process.

  Mr. McCreevy: I will not accept amendments Nos. 16, 17, 18 or 19. I am satisfied that section 6 of the Bill contains reasonable provisions which will serve to discourage inappropriate use of the Act while also serving to better protect public bodies against requests which involve a substantial and unreasonable interference with their work.

  With regard to fees, it is mandatory under the existing Act for a fee to be charged to a requester in respect of search, retrieval and photocopying of records involving non-personal information, unless exceptional circumstances apply. When a decision is made to charge such fees, no records are released until the fee is paid or, if an appeal [122] of the fee is made, until after the appeal process under the Act has been exhausted. It is difficult to identify circumstances in which such fees could be said to be unreasonably withheld from a public body. The review mechanisms exist to deal with the issue of the reasonableness or otherwise of the existing fees. If a person believes a fee is unreasonable, he or she can exercise the right to appeal. Section 10 of the principal Act allows for discretion to be exercised so that if a person failed to pay a fee in the past for some genuine reason, such as illness or absence, the head can exercise his or her discretion in deciding whether to refuse a request if a previous fee, properly charged, is outstanding.

  Deputy Burton referred to Shylock in “The Merchant of Venice” by stating that the Department of Finance is seeking its pound of flesh. The great bard spoke in another great play, which can equally describe the comments from the Opposition during this debate, “of sound and fury, Signifying nothing.”

  Mr. Boyle: I commend the Minister for being able to quote Shakespeare. It shows he is not a total loss or a cultural vacuum. The commentary of the Information Commissioner, especially on fees, was vivid in its warning to the Minister not to go down this road. The commissioner said he believed great caution must be exercised in taking into account, in deciding one request, the behaviour of the requester on an earlier request.

  He cited one case, which involved his office, between a Mr. A.B.W. and the Department of Enterprise, Trade and Employment. The same case was cited by the Secretary General of that Department when he spoke, as a member of the high level group, to the finance and public services committee when hearings were held on this Bill. While this individual is known within the Department and to the Information Commissioner for making a large number of requests, indeed, more than the combined number of requests made by the Irish media, none of the requests could individually be described as vexatious. All were general interest questions which should be of interest to members of the citizenry and could not be refused on any grounds. The Information Commissioner took that position.

  That being the case, the restrictions proposed by the Minister can be seen as nothing less than spiteful. If it is the intention to introduce new legislation that questions the right of an individual to ask as many questions as they see fit when the questions are valid, we are creating considerable problems for ourselves and our democracy.

  Caoimhghín Ó Caoláin: I am deeply disappointed by the Minister's response to the reasonable amendments put forward by the Opposition spokespersons. We are seeking to remove a further obstacle to access which the Minister is proposing to introduce in this amending legislation. Again, I will focus on people who have not previously paid a fee. There may well be genuine [123] reasons for refusals that have already been reported. It is imperative that people do not face what has correctly been described by an earlier speaker as a life sentence of refusal to access information under the freedom of information legislation or to exercise their democratic right to secure information under that Act. Each request must be judged on its merit.

  This Bill is a further facilitation of refusal, which is the substance of the Minister's approach in rowing back on the important measures that were enshrined in the initial legislation. The fee, not only in the instance where there has already been a refusal to pay but also in the imposition of a fee for requests for information, is a tax on the individual and on civic action by those from the community and voluntary sector, something we highlighted to the Minister on Committee Stage. I strongly urge the Minister to reconsider. I reject this amending legislation outright.

  An Ceann Comhairle: As it is now 7 p.m. I must put the following question in accordance with an order of the Dáil on this day, “That the amendments set down by the Minister for Finance not disposed of are hereby made to the Bill, that Fourth Stage is hereby completed and the Bill is hereby passed.”

  Question put and declared carried.