Catherine Murphy (Kildare North, Independent) | Oireachtas source

The first principle underlying freedom of information is that public information does not belong to the Government nor to State agencies but to the public. Governments and State agencies work on behalf of the citizen. Undoubtedly there are positive aspects to this legislation. However, there are also a lot of get-out clauses in it which concern me greatly. Furthermore, there are aspects of the legislation that could be improved because of risks inherent in the way it has been drafted.

People often complain that politics is very inaccessible. That is the case even for those of us who are elected to this House. Very often Government is quite inaccessible in terms of determining how decisions are made. We frequently ask for the advice given to Government on various issues but the advice that the Attorney General gives, for example, is never released to anyone other than members of the Government.

I appreciate that many of the provisions of the original 1997 Act are restored with this legislation, provisions which were disgracefully taken out or altered, in particular those concerning the operation of government itself. However, it is worth noting that it will be up to Ministers themselves, as heads of Departments, to determine whether an item of interest is to be protected from release for five years. Clearly, these are judgment calls and one would have to question why that provision is inserted so stringently. A safeguard, in that context, could be a requirement that Ministers issue a detailed explanation as to why items cannot be released rather than simply responding with a cursory one-liner.

If one looks at how Ireland compares internationally, it is clear that we have an opaque system of Government which was inherited from the British model. It was our exposure to the continental style of openness and transparency, primarily through the European Union, that brought a realisation that transparency is good and that we need to operate in a more open way. As has already been said, the more transparent decisions are, the less will be the requirement to use the Freedom of Information Act.

The reality is that the transparent approach continues to be resisted at every level of administration from local government to central government and from the Civil Service to State agencies. This does the system a great disservice because when things are revealed, it can be very damaging in how it is perceived publicly.

The Cabinet operates under absolute confidentiality, which is extremely stringent. While I accept that in many cases maintaining Cabinet secrecy is in the national interest and can result in effective government, equally, in many cases, the national interest would be better served by having a more open and transparent process. We need only look at the budgetary process and the Economic Management Council. Such a process would not be tolerated in other countries. I do not see why we have to be different, because some of those countries are far better examples of how to do business and flourish. Why is putting Cabinet deliberations under the remit of freedom of information seen as a risk? What are we trying to protect the citizens from, if we are a true republic with government for the people by the people?

Some of these things will have to change in future - for example, the protection of advice from the Attorney General. The Oireachtas Joint Committee on the Environment, Community and Local Government has recently been debating the forthcoming climate change legislation, which is hugely important.

It is very annoying when one comes in here to make a contribution that there is only the Minister and one other Member, and one is not listened to. I and others put a bit of effort into our contributions and, at the very least, some attention should be paid to them.

With regard to the way we will deal with legislation in the future, including scrutiny of the heads of Bills at a pre-legislative stage, the joint committee spent three days at hearings on the climate change legislation over the summer and will shortly be putting a report together. However, different advice was given by two Attorneys General to two Governments on climate change targets. Whether to include targets in the legislation is not relevant to the point I am making. The point is that the committee did not have the benefit of the Attorney General’s advice, or in fact any advice - we had to go and look for somebody from the Library and Research Service. That will be a considerable difficulty when we are doing legislation in a different way. We are really doing it blindfolded. That will be problematic and will force a change towards better sharing of information if we intend to construct legislation differently.

The regulation of lobbyists is contained in another Bill, but there are two sides to lobbying. It is equally important that those who are being lobbied be subject to some scrutiny.

Dr. Nat O’Connor of TASC has shown that the fees regime for freedom of information does not lead to any cost recovery, as the cost of administering the fees more than absorbs this. The regime is a means of discouraging people from making freedom of information requests. The same happened with the €20 charge for planning queries. The intention behind that fee regime was to reduce public engagement. If anything, one could argue that public engagement was all the more needed, given the property market crash and the role that planning played in this. Far from being a nuisance, very often the points that were made and the proposed restrictions that were eventually rejected were positive rather than negative.

Genealogy is an area that has been of personal interest to me for a long time, and I have done a lot of work with regard to my own family. There are particular things in this legislation that could cause serious problems. Given the size of our diaspora, genealogy research could provide an economic opportunity. Let us not close off that opportunity. The first principle should be that of public ownership of the right to access. For those who are not related to a person whom they are researching, whether on a voluntary or a professional basis - we are seeing more and more professional genealogists, which is a welcome new industry - this is included in the Bill under section 2, which is assigned to the Data Protection Commissioner for definition. If we start to describe genealogical information, such as birth, marriage and death records, as private rather than public information, then the scope for genealogical research is closed unless one is connected to the people one is researching. This could be incredibly damaging. Other countries have decided that such information should not be deemed to be personal information after a certain number of years; for example, any information over 70 years old cannot be deemed as personal information and is, accordingly, open for historical research. Births, marriages and deaths could be stamped as research-only. There are ways of doing this that will not cause difficulty, and they absolutely need to be done. The Freedom of Information Bill presents several challenges in this regard. The drafters have failed to realise that there is a potential difficulty there. I have spoken to people who are very well respected within the sector, including John Grennan and Michael Merrigan of the Genealogical Society of Ireland, and they should be listened to. What appear to be positive aspects of the Bill may turn out to be negatives. We already have a difficulty because of the fragmented nature of our records, and indeed, the loss of our 19th century census records means that census substitutes such as birth, marriage and death records become all the more important. The more available they become, the bigger the benefits for those who are researching in this area. This could be a game-changer. In addition, there is not an integrated approach in terms of where these records are held, but that is a separate issue. We have a terribly bad attitude to such research, as though we consider it to be frivolous. The very fact that the General Register Office research facility has been moved from the Irish Life Mall to the old labour exchange on Werburgh Street demonstrates this, although I completely accept that it was costing too much. This site is protected by barbed wire and looks unsavoury. We should have a lot more regard for people who may have come here for The Gathering and are hoping to do research. Despite the fact that we have spent a fortune digitising these records, they are still not online and there do not seem to be any indications of when they will be. People have to physically go and get the records they need.

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