Ms Emily O'Reilly:

I am grateful for the invitation to meet with the joint committee to discuss the draft heads of the general scheme of the Freedom of Information (Amendment) Bill. I reiterate that I very much welcomed the commitment contained in the programme for Government to restore the Freedom of Information Act to what it was before the 2003 amendments and extend its remit to other public bodies. The proposals outlined in the draft heads will go a long way towards restoring the confidence of members of the public in the Government's commitment to optimising openness, transparency and accountability. Some very positive additional measures are proposed, such as the automatic application of freedom of information legislation to all newly formed public bodies.

I was also very pleased that my officials were afforded the opportunity of consulting extensively with the Department of Public Expenditure and Reform on the draft heads. As the joint committee will note, I published a commentary in 2007 which contained detailed recommendations aimed at improving the operation of the Act. As the majority of these recommendations have been incorporated into the draft heads and given that the explanatory notes to the draft heads reflect, in the main, my office's position on the amendments, I will keep my opening address brief.

Members will note that I focused on three specific areas in my written response, namely, the review of non-disclosure provisions in other legislation, the exemption relating to security, defence and international relations and the partial application of the Act to the Garda Síochána and other bodies. Section 32 of the Freedom of Information Act provides for the mandatory refusal of access to certain records whose disclosure is prohibited, or whose non-disclosure is authorised, by other enactments. Section 32 is a very important provision because it subordinates the access provisions of the Act to all non-disclosure provisions in statutes except for those which are cited in the third Schedule to the Freedom of Information Act. The Act provides for the review by this committee every five years of the operation of any enactments that authorise or require the non-disclosure of records to determine whether they should be amended or repealed or be added to the third Schedule.

While I can fully appreciate that the committee has a very heavy work schedule, it remains the case that the most recent such review was conducted in 2005 and a further review is now several years overdue. The reports of individual Ministers which have been made available to my office show that, since the Freedom of Information Act became law in April 1997, many new non-disclosure provisions have been introduced in individual enactments. The non-applicability of the Freedom of Information Act is appearing as a standard component of many new Acts and the number of non-disclosure provisions being introduced in individual enactments is increasing. Departments are reporting approximately 230 enactments containing non-disclosure provisions, of which 50% became law since 1 January 1998. This means that as many non-disclosure provisions have been introduced since 1997 as were introduced in the preceding 75 years. The current proposals to amend the freedom of information legislation present an opportune time for the committee to conduct a review of the operation of section 32 and incorporate in the Bill any changes proposed arising from that review.

On the matter of the exemption relating to security, defence and international relations, the 2003 amendment Act introduced a mandatory class exemption for records containing such matters. The amendment made the protection afforded by the exemption absolute, regardless of the sensitivity of the records or nature of the harm that might be occasioned by their release. While the draft heads provide for a number of the changes introduced in 2003 to be reversed, the amendments proposed fail to fully restore the exemption to its pre-2003 state, in that a number of records remain protected as a class. For example, records containing information which was communicated in confidence between Ireland and an EU body will remain protected as a class of exempt records, even though the information contained in the records may have since lost its quality of confidence. In the 1997 Act, such records were protected only where the public body considered that access could reasonably be expected to give rise to one of the harms identified in the exemption. The protection of records as a class is generally not warranted and it would be preferable if some form of harm test were to be re-introduced. I am also conscious that section 25 of the Act provides an absolute safeguard against release of any record to which section 24 applies through the power of a Minister to certify such a record as exempt from release.

I have previously expressed my views that the exemptions contained in Part III of the Act are sufficiently robust to ensure the protection of records where release would be likely to give rise to any of the harms which the exemptions seek to protect. As such, I question the need to restrict the application of the Act to the extent suggested for the Garda Síochána. In my opinion, if it is accepted that the exemptions contained in Part III are sufficiently robust to ensure the protection of records where release would be likely to give rise to any of the harms which the exemptions seek to protect, a strong case can be made for full application of the Act to all relevant bodies, including those where partial access only is now proposed.