Government Position
I wish to thank Deputy Fleming for bringing forward his proposals to amend the Freedom of Information Act.
I intend in my contribution to this debate to respond to the provisions in the Deputy’s Bill.
I wish, however, to be clear at the outset that the Government supports this Bill in principle.
The provisions of the Bill relating to the extension of Freedom of Information to certain public bodies are aligned with the relevant commitment in the Programme for Government. Indeed the Programme for Government envisages the extension of Freedom of Information not only to those statutory bodies currently outside the Act but also to other bodies who are in receipt of significant funding from the Exchequer.
The other provisions relating to other matters included in Deputy Fleming’s Bill can broadly be characterised as seeking to improve certain aspects of the operation of the Freedom of Information Act. This objective corresponds to an important element of the proposals currently being finalised by the Minister for Public Expenditure and Reform for consideration by Government.
Notwithstanding that the Government supports the objectives of this Bill, given that the Minister for Public Expenditure and Reform will, in due course, be bringing forward his own detailed and extensive proposals for consideration in this House, I move amendment No. 1: To delete all words after “That” and substitute the following:
"Dáil Éireann:
- noting the intention of the Government, as committed in the Programme for Government:
to legislate to restore freedom of information;
to extend its remit to other public bodies including the administrative side of the Garda Síochána, subject to security exceptions, and
to extend freedom of information to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered under the legislation;
resolves that the Freedom of Information (Amendment) (No. 2) Bill 2012 be deemed to be read a second time this day nine months.".
In proposing this approach it is important to recognise that the Programme for Government not only deals with the proposed extension of the Act but also to its restoration.
In this context, the Taoiseach speaking in this House on Tuesday reiterated the Government’s intention to restoring the Act to what it was prior to 2003. He highlighted that most of the complaints received in respect of the Freedom of Information Act relate not to the processes by which information is obtained but to the restrictions that apply to the information that can be released.
So while the proposals included in Deputy Fleming’s Bill to improve the Act are very welcome - and will, as I will discuss later, be considered further as part of the development of the legislation - the Minister’s proposals are significantly more far-reaching than the proposals in the Deputy’s Bill.
In overall terms, for these reasons while the Government welcomes the Deputy’s proposals and I thank the Deputy for his Bill, the legislative proposals to be brought forward by the Minister for Public Expenditure and Reform in due course following approval by Government, will secure a more substantial and valuable goal.
This, therefore, informs the amendment proposed by the Government to this Motion which I hope on this basis will be supported by the whole House.
Status of Government’s Proposals
As advised by the Taoiseach to the House earlier this week, the current position in relation to the delivery of the Government’s commitments in respect of Freedom of Information, is that a great deal of work has been carried out by the Minister for Public Expenditure and Reform on the Freedom of Information Act. A comprehensive and detailed assessment has been undertaken by the Minister’s Department of the key steps and priorities relating to the implementation of these commitments. The views received from other government departments in respect of the Minister’s Freedom of Information proposals are being considered, and it is planned to bring proposals to Government in the coming weeks to secure approval for the drafting of amending legislation that will reform the Act.
Content and Assessment of the Private Member’s Bill
Turning now to the detail of Deputy Fleming’s Bill:
Extension of Freedom of Information
Deputy Fleming’s proposals provide for a number of specific public bodies to be brought under the Act.
As I have already mentioned, the Deputy’s proposals are consistent with, but do not go as far as, the Programme for Government commitment to extend the Act not only to all statutory bodies, but also to non-statutory bodies in receipt of significant public funding.
The Minister for Public Expenditure and Reform believes that the experience and track record of Freedom of Information since its introduction in 1997, demonstrates that the increased transparency it can engender, can significantly enhance the quality of the decision-making and can yield substantial benefits in value-for-money terms for the Exchequer. Deputies can find some examples of these positive benefits in the report entitled “Freedom of Information the First Decade” published by the Information Commissioner in May 2008.
The Minister is, therefore, committed to as comprehensive approach as possible to the extension of Freedom of Information. He believes that the question of partial application should only arise in the most exceptional circumstances – a principle which in fact was enunciated by the High-Level Group of Secretary-Generals whose report Deputies will recall was a significant input to the amendments made to Freedom of Information in 2003.
For example, in the case of the Central Bank of Ireland, the Minister accepts that there is a need for some restrictions on the application of the Act to reflect professional secrecy obligations under EU Financial Services Directives and the European System of Central Banks Statute, which supercede any requirements under domestic law. In the case of the EU Financial Services Directives, these prohibit the disclosure of institution specific information.
Another case where partial extension must apply is that of An Garda Síochána, where the Government is committed under the Programme for Government to applying the Act in respect of the administrative functions of An Garda Síochána subject to security exceptions. In this regard, it is important to recognise that that some administrative records may relate to security or intelligence activities and the release of such records may potentially have substantial adverse consequences for these activities. Officials from the Department of Public Expenditure and Reform have been working with officials in the Department of Justice and Equality to ensure the commitment in the Programme for Government can be delivered in a manner which fully respects the requirement to exclude security and intelligence records, as well as those records relating to the operational functions of An Garda Siochána from the scope of Freedom of Information.
Clearly, looking across all public bodies not currently included under the Act, particular considerations relating to the scope and extent to which Freedom of Information might apply in individual cases may be expected to arise. In this context, the Taoiseach has already made clear to the House that final decisions in all these matters – as indeed arises in relation to the full gamut of proposals relating to the restoration and appropriate modernisation and extension of Freedom of Information are ultimately a matter for Government.
Publication of Information
Deputy Fleming proposes that where a Freedom of Information request is received by a public body and the release of that information is assessed to be in the public interest, it should be published.
The Minister supports this proposal and has asked me to advise that the Freedom of Information Act specifically acknowledges that Freedom of Information is not the only means of accessing information, and nothing in the Act is intended to interfere with alternative administrative arrangements for access. The Minister’s own proposals highlight the case for pro-active publication and release of records, and indeed the adoption by public bodies of proactive publication policies on official information. There is, however, an important legal consideration to be addressed that where official information is released outside of the Act the various immunities provided under the Act against possible criminal or civil liability do not apply. It will be necessary to examine how the disincentive which this creates to proactive release of official information can be resolved.
Provision of information to Oireachtas Committees
The Deputy’s Bill also seeks to ensure that Oireachtas Committees should, on request, be provided by public bodies with the same information as would be available to them under a Freedom of Information request without having to make such a request.
This issue is a major frustration to Oireachtas committees and is a very understandable and persisting cause of complaint. However, it also highlights the difficulty I have just referred to that an official providing official information to an
Oireachtas Committee is, at least in theory, subject to a legal risk that does not arise where information is released under FOI. It will be a priority in the further development of the Minister’s proposals to seek to identify a legal mechanism where the appropriate role and responsibilities of the Oireachtas Committees and their legitimate interest in receiving official information on a timely basis that would be available to an individual member of the public under FOI
Search and retrieval fees
A maximum search and retrieval fee for a Freedom of Information request of €500 is proposed by the Deputy, along with a facility for the electronic payment of such fees.
As the Deputy will be aware, there are no fees for Freedom of Information requests for personal information – these comprise about 70% of the total number of FOI requests. While a fee of €500 would be a high level for search and retrieval fees charged, it could arise in the case of large or multifaceted requests (i.e. where one ‘request’ has a large number of separate unrelated parts). The question arises that if such a high level of search and retrieval fees needs to be charged, whether the request was sufficiently targeted and focused in the first instance, and should have been rejected as voluminous.
Proposals relating to fees for non-personal FOI requests will be included as part of the set of proposals being brought to Government shortly for consideration. In this regard, a particular focus of the work undertaken by the Minister relates to the excessive level of fees for internal review and appeal to the Information Commissioner, which have been a particular cause of concern in terms of facilitating a right of appeal against decisions to withhold records.
These issues, including the specific proposal in the Private Member’s Bill for a ‘cap’ on search and retrieval fees, can be examined in the course of the further development of the Government’s legislative proposals.
New bodies established by Government
The Deputy proposes that all new bodies established by Government should come under the remit of Freedom of Information legislation. This is in line with the Government’s commitment to apply Freedom of Information to all public bodies, including those established in the future.
Definition of “administrative functions”
The Deputy is right, it will be necessary to have a clear definition of “administrative functions” as it relates to the Freedom of Information Act. Again, this can be examined in the context of the drafting of the amending legislation as approved by Government.
Conclusion
In conclusion, I thank Deputy Fleming for introducing his Private Member’s Bill and reiterate the Government’s support for it. To be clear, the Government is not proposing to vote against the Bill but in light of the more extensive proposals being prepared by Government, believe it is better to defer the Deputy’s legislation for nine months.
Subject to Government approval, the Minister intends to publish his legislative proposals and refer them for examination on a pre-legislative scrutiny basis by the Joint Oireachtas Committee on Finance, Public Expenditure and Reform. The views and recommendations of the Committee on a number of key issues relating to the restoration and extension of Freedom of Information, including the operation and future direction of Ireland’s Freedom of Information regime would be expected to make an important contribution to the modernisation and updating of Ireland’s FOI regime.