Oireachtas Joint and Select Committees
Thursday, 10 January 2013
Joint Oireachtas Committee on Finance, Public Expenditure and Reform
Freedom of Information (Amendment) Bill: Discussion with Minister for Public Expenditure and Reform
We are meeting the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, to discuss the general scheme of the freedom of information (amendment) Bill. I welcome the Minister and his officials. The Minister has supplied his full opening address, which we will take as read, as was proposed when it was issued earlier by the clerk. We will then deal with the main points to be considered. When I get an opportunity to do so I will move to questions. I remind members to switch off their mobile phones. I also remind members of the long-standing ruling of the Chair to the effect that they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable. I call on the Minister to give us a germane view of where he is with the legislation and we will proceed from there.
I thank the committee for facilitating this meeting. The President of the European Commission and all European Commissioners are in town and we spent the morning having very constructive dialogue, not only on our Presidency agenda but on matters which are very important to the country, and I greatly appreciate the Chairman facilitating my late arrival. We will take the speech as read.
The Bill is one of a suite of reform measures that the Government is determined to introduce to change how public business is done, and the committee has already debated some of them. The Freedom of Information Act is bedrock legislation which underpins public access to the way the people's business is done. The aspects I will deal with are the reforms I seek, why they are required and how we will bring them about.
I was a member of the Government that introduced the original Freedom of Information Act and I remember the very detailed debate when the then Minister for these matters, Eithne Fitzgerald, steered the Bill through the Oireachtas. Significant restrictions have been imposed on this ground-breaking legislation, primarily by an amending Act introduced in 2003. The objective I have set out in the draft heads is to reverse the restrictions put in place in 2003 and to extend the Act to the widest possible definition of public bodies and also to non-public bodies significantly funded from the public purse. Members will recall the approach we took in dealing with the remit of the Ombudsman was that not only public bodies qua public bodies should be subject to oversight but also those substantially funded from the public purse.
Severe restrictions were placed by the amending legislation to access to information as set out in the original Act. Significant high-profile bodies that exercise very important public functions have been excluded from the Act and there is a need to address the gap that was created. Deputy Donnelly, who is sitting across from me, and others have an interest in the financial institutions, the Garda Síochána, refugee and asylum agencies and a number of qualified judicial and regulatory bodies which will now be brought under the remit of the freedom of information legislation.
The original Act has been in place for 15 years and in any event it is timely to review its functioning and consolidate and simplify it, based not only on what we have learned from how it has worked in this jurisdiction but on an examination of best international practice. We have taken advice on this from the Information Commissioner, which we have also incorporated in the reforms laid before the committee.
The reforms seek to ensure greater access to official information, which is fundamental to the operation of any democratic institution. They also seek to create genuine openness and transparency. I know people often tire of this phrase, but it is important to how the Government and public bodies do their business. The reforms also seek to ensure Ireland's freedom of information regime is restored to the top tier of legal frameworks internationally for facilitating access to information, and to ensure the culture and practice of secrecy in public bodies is set aside for good and replaced with a basic legal presumption that the public has a right to know.
I am happy to answer any particular questions committee members may have.
The Bill contains significant provisions to extend the powers of the Ombudsman and reduce fees.
Of the three issues I wish to raise, the first is that of the non-public bodies now falling under the legislation - for example, NGOs that receive the majority or largest portion of their funding from the State's coffers. Will they be required to make full disclosures of all information, be it correspondence, financial accounts or other day-to-day operational matters?
In terms of non-public bodies, we have extended the Ombudsman's remit to bodies that are not de jure public bodies, but are substantially funded by the public. Under that remit, they will make full disclosures of their activities and how those relate to the public in the normal way. The legislation will affect them to the same degree as it affects public bodies. Restrictions and safeguards will also be applied to the same degree.
The legislation sets out the criteria defining which bodies will be captured by these measures. The specific bodies that meet the criteria set out in the draft heads that we circulated to the committee will be set by regulation.
For example, the Private Residential Tenancies Board, PRTB, will fall under the legislation in light of the recent Residential Tenancies Act. We are referring to NGOs or non-statutory organisations that provide a public service or fulfil a public function. Will charitable organisations that receive significant sums, be they housing agencies or other bodies, fall within the Bill's remit?
We have approached the Bill by not being prescriptive or trawling through every body to decide which is in and which is out. Instead, we have set out criteria, namely, the absolute level of funding provided to the body, who gives the money if it comes from the public purse, the percentage that comes from the public purse, the significant funding provided annually as opposed to a one-off grant - if a body received a grant, it would not suddenly be captured, as the money must form a significant part of core ongoing funding - the nature and function of the body and the extent to which it provides a service to the public. This discussion will mirror our debate on the Ombudsman. Some bodies have no public interaction and, therefore, will not be subject to freedom of information requests. These are the criteria. Once we have set them out, we will draw up a statutory instrument listing the bodies that fall under the Bill's remit. If people believe that bodies have been wrongly included or excluded, we can discuss the matter then.
Without mentioning specific charitable organisations, some could have significant governance issues as regards their funding. For example, some NGOs that operate in developing countries receive significant funding from the State. Their accountancy and governance structures will be subject to freedom of information requests.
They would be subject to the same scrutiny as a public body under the Freedom of Information Act. The normal exemptions in terms of commercial transactions and so on would apply.
I will address two other agencies. I am trying to manage my time. It seems that the National Asset Management Agency, NAMA, the National Treasury Management Agency, NTMA, the National Pensions Reserve Fund, NPRF, and the National Development Finance Agency, NDFA, will also fall within the scope of freedom of information requests. When the NAMA legislation was passed, it was almost impossible for Members to access information on NAMA's day-to-day operations. In fact, one would have been sailing close to the wind in terms of being in contempt of court or in breach of legislation. When I investigated NAMA's operations in respect of a business location in Cork, I needed to get a senior counsel's advice just to write to NAMA.
As a result of this new legislation, will the public as well as Members be able to get information on NAMA's day-to-day operations? How intimate will be the information on NAMA, the NTMA, the NPRF and so on that the public receives? Those bodies possess sensitive information.
It will be a balance. I have held discussions with my colleague, the Minister for Finance, regarding these issues. The NAMA suite of companies - I will not list them all or their acronyms - operate in a very challenging commercial and economic environment. They handle deals that are commercially sensitive on a real-time basis. Important safeguards that ensure the well being of the State will require that such information not be disclosed in a completely open way.
Targeted legislative changes are necessary - these are what we have set out and negotiated - to extend the freedom of information regime to encompass these bodies. To the extent that timely information would not have an adverse impact on the public good, it should be in the public domain. This is the approach we are taking with these bodies.
The Garda will also be required to provide more detailed information under the Freedom of Information Act. Obviously, there are issues of security and sensitivity regarding investigations and matters that are before the court. Recently, an issue arose in terms of the Garda quashing penalty points. As the Minister views this legislation, would that type of information be accessible? Could a member of the public write to the Garda asking how many penalty points were issued in the past 12 months or two years and how many of those were quashed? What level of information could that person acquire regarding the names of the individuals who had had their points quashed?
That is a specific question, but I will answer in a general way. As the Chairman can imagine, organisations such as the Garda Síochána are reluctant to enter this territory at all. It regards any trespass into this territory as being almost dangerous. As such, I am pleased that we have an agreement at Government level - I hope that the Dáil also agrees - to the effect that the Garda Síochána will be encompassed by this legislation in so far as its administrative functions operate.
The Chairman's specific question strikes me as relating to an administrative function that would not necessarily have an impact on legal or criminal proceedings, although it might. We should know the administrative information - for example, the deployment of gardaí, how policing decisions are made, etc. To the extent that the matter raised by the Chairman is administrative information, it would be in the public domain and subject to freedom of information requests. Obviously, criminal investigations would not be encompassed.
I thank the Minister for attending. We in Fianna Fáil welcome the legislation. The Minister referred to my introduction of a Private Members' Bill last July. It was one of the few Private Members' Bills in the past year that the Government accepted in principle. The Minister deferred Second Stage because he was working on legislation of his own.
This Bill is substantially in line with my proposals and has taken account of the debate on this matter in recent years. I welcome the extension of the legislation's measures to, for example, the administrative functions of the Garda, the NTMA, NAMA, the Central Bank and vocational education committees, VECs. People are probably amazed that VECs were not previously encompassed in the provisions.
I will put a few points to the Minister. He might not have the answers, but the purpose of today's meeting is for us to express opinions that he can take into account. He does not need to accept or reject them now. Rather, he can consider some of our points. I welcome his preliminary response.
Regarding fees, a great falsehood was told about changes to the freedom of information legislation. When fees were introduced for requests for non-personal information, people claimed that doing so destroyed the original Act.
A large proportion of freedom of information requests are from people seeking personal information, in respect of which no fee has ever been charged. While I welcome that this legislation does not propose to introduce a fee in this regard, I note that the €15 fee in respect of third party requests introduced a number of years will remain in place, which is the issue that previously created the most controversy . Fianna Fáil may during Second and Committee Stages of this Bill refer to what Labour Party members previously had to say on this issue. As I recall, every member of the Labour Party was at that time opposed to the introduction of the €15 fee. I note there is no proposal in this Bill to change that. The Minister will, therefore, appreciate that we will come back to this issue.
I will attempt to be of assistance to the Minister on the fees issue. I would ask that his officials take note of the following. When drafting my Private Members' Bill on this issue around the end of February last, I tabled parliamentary questions on search and retrieval fees to each Department. I would like the Minister to deal with this issue, although I do not expect him to do so today.
Following the introduction of last year's budget, I submitted a freedom of information request to the Department of Finance and was told that the cost of retrieving the information I requested would be €1,300, by which I was outraged. I did not proceed with that request. I do not accept that the cost involved was that high. This led me to tabling the parliamentary questions to each Department. I was interested to learn that some Departments have never charged a search and retrieval fee. The Department of Social Protection, which receives the most FOI requests, does not, as a matter of principle, charge any fee. Some Departments charge only €8 or €15 and others charge up to a couple of hundred euro. While the Department of Finance fee was only €83, it discouraged other requests by charging higher fees. The Department of Justice and Equality charged one search and retrieval fee of €15,664.
I would like if the Minister could address the issue of retrieval fees by way of putting in place a maximum fee, say, €100, €200, €300 or whatever other figure he believes appropriate, in this regard. I accept that there is a volume of work involved. Where a person requests a considerable amount of information, he or she could be asked to break down or be more specific in terms of the information being sought. I believe that the fees being charged by some Departments are an abuse of the current system.
I am pleased that new bodies are to be covered by the legislation. However, there are already many exemptions in this regard provided for in current legislation. As I understand it, each committee is asked every three or four years by the information commissioner to carry out a review of these exemptions. While it may be provided that all Departments are subject to FOI requests, as soon as one seeks information on particular issues within Departments, exemptions under specific legislation in this regard are cited. While in some cases requests may be refused for reasons of national security, I believe officials, who are not fully committed to FOI, are using this as an excuse. I ask that most of the current exemptions be removed under this legislation. I would also like to see more specific proposals on the situation in respect of new bodies, for example, the VECs which are now legal entities. It should be stated in the legislation that every new legal entity set up by Government through the Oireachtas is subject to FOI from day one. The usual standard is to establish an organisation and wait for up to three years for it to bed in before imposing FOI on it. However, that stage is never reached. If the culture was forced on them from day one, they would get it right from day one. These are the type of issues about which I am concerned. While I welcome the legislation in general, Fianna Fáil will be tabling a series of amendments to it on Committee Stage.
I thank Deputy Fleming for his questions and for taking the considerable trouble of drafting his own Bill, which was helpful in terms of allowing debate on the issue prior to finalisation by Government of its own Bill and in pushing the hands of Government, which is a useful thing to do on issues of importance. I was glad to be able to accept it.
My officials will take note of everything said today. On fees, the bulk of applications are for personal information in respect of which no fees accrue. Some 70% of all applications fall into that category. As such, only 30% of freedom of information requests accrue a fee. I will have my officials check the fees' value and so on. In 2011, the totality of fees divided by the number of actual FOI requests which were non-personal generated an average charge of €23. The actual cost - these are not absolute figures - of providing that information was €640 per request. As such, the fee charged covers only 4% of the cost of providing the information. Whether fees should be open is a moot point. There are people who stay up late at night submitting numbers of freedom of information requests on their computers, which often overwhelms systems. In my view some level of break is reasonable. However, I am willing to hear views on the issue. I believe the initial fee system, which is modest, remains appropriate. I am more concerned about fees in the appeals mechanism, which, in my opinion, ratchet up too quickly. This is a definite disincentive to people whose requests are refused making further requests. I propose to significantly modify the fees that apply in respect of appeals. I believe that is the sensible way to go. As I said, the views of everybody on these matters will be taken into account.
On the Deputy's point about search and retrieval, I believe he made that point rather effectively when introducing his Bill. I am minded to agree with him that fees should not be allowed to be ratcheted up to such an amount which discourages people. I am not adverse to supporting the notion of a cap in this regard. For information, I will provide the Deputy with the data on this. In 2011, the average search and retrieval fee charged for non-personal data was €7.42. Obviously, one gets very little actual public service time for €7.42, which is less than the hourly minimum wage rate. A realistic and modest fee should be charged. However, the Deputy's point, in terms of a cap, is well made.
The Deputy also made a valid point in relation to exemptions, which I will look at again. On his point in regard new bodies automatically coming within the scope of FOI, we are in this legislation adopting the approach taken in the ombudsman legislation which means new public bodies will be presumed to be encompassed.
I welcome this legislation. A big disservice was done in 2003 to good government and transparency in government by the then Fianna Fáil Administration. That said, the Labour Party gave a commitment in respect of the abolition of fees. The Minister has provided us with information which reflects that the charge levied meets only 4% of the cost involved, which as he stated is a tiny amount. I would like to come at this from a slightly different angle. What is the cost of administering that fee? The Minister may be aware that following a review of freedom of information legislation and fees in Britain it was decided to abolish fees because regardless of what level they are pitched they act as a disincentive.
Second, it was calculated that the administration of the system in itself represents a cost to the public purse. Will the Minister give us whatever information he has on that? Is that the case in this jurisdiction also?
I have an open mind on the fees issue. I do not want the systems to be overwhelmed by people submitting reams of freedom of information requests. However, many people have overcome the fee structure by simply submitting multiple requests in a number of subsets under a single freedom of information request. It is a moot point. We are now in a situation where we want administration in general to be efficient and not overwhelmed with freedom of information requests, and even the hundreds of parliamentary questions that come to the Department, for information that is readily available on the website if people would just refer to it. We live in a very transparent world and we can put more information on the website about our activities. I put the minutes of the management committee meetings of my Department on the website as well as information on all acquisitions over €20,000, invoices and so forth. More information is available but it is still sought in freedom of information requests. Incidentally, 15% of the non-personal requests are from the media and quite often one will see a large headline in a newspaper over information that has been on the website for the last six months. It is already in the public domain if anybody bothered to look for it. They think, however, that if they leverage it through a freedom of information request it adds a certain spice to it. That appears to be the case in some areas.
There is a review of the freedom of information procedure, as I indicated in my speech, and these are the matters on which I would like to have information. Having looked at what we said when we were in opposition, the information I have received and the analysis I carried out of actual costs, my decision was that where we need to make change is not on the base cost, which is relatively modest, but on the appeals cost, which is prohibitively high.
The Minister has to make a judgment on fees and I accept that he does not want the system to be overwhelmed. For the most part, the average citizen does not customarily flood the system with freedom of information requests. It is not a standard thing for people to do. I accept the logic of the Minister's position to some extent in terms of not having the system overwhelmed, but if the Minister is to make an informed judgment on fees, a central piece of information would be to know the administrative burden of the fees process because there is a cost involved in that as well. If he does not have that information, will he seek it?
It is a fair point but I do not wish to spend a lot of money asking every agency to track the proportion of the time spent to send out a fee notice or to collect a fee. I will have regard to it, now that the Deputy has made that point. I believe, as a general principle, that what I have set out is logical and reasonable. We are charging for base, non-personal information a fee that covers 4% of the cost of providing that information. I do not believe that is punitive, but I am willing to hear the views of people who believe it is. Second, the real issue I discerned from looking at the data was with the appeals.
Could the Minister provide the committee with the information, to best of his ability, as to what type of administrative cost burden the management and levying of fees imposes? I do not make this request in a vexatious or frivolous manner. It was a matter of some consideration and concern when these matters were considered across the water. It is something that should be factored in, but I will not press the issue.
I have questions about two other areas of concern. In defence, all of us understand that there are obvious sensitivities in some areas.
Absolutely. Some of the Minister's colleagues in government might be quite protective in that regard. However, I will give the Minister an example. In the case of the movement of troops through Shannon Airport, that type of information is of key public interest and I believe it is information that should be readily available. Does the Minister's legislative framework allow that type of information to be accessed through a freedom of information request?
The second matter is the justice area, and we discussed these issues in the context of the changes to the role of the Ombudsman. Will the Minister talk about prisons and places of detention, and how accessible information will be from those places through this new freedom of information legislation?
On the defence question, defence will be included but a test will be established. It will be a balance between the public interest to know and the potential to cause or do harm. That is the determination that will have to be made. On the question about Shannon, if I was making the determination, I would not see that it could demonstrably cause more harm than the public right to know. That is my personal judgment. The same would apply to the prisons. Obviously, personal data about individuals would not be in the public domain. Section 23 states there can be a refusal to grant a request under section 7 of access to the record concerned where, in the opinion of the head, it would reasonably be expected to prejudice or impair the prevention, detection or investigation of offences. I will not go through the other criteria but they are listed in section 23.
It is great to see the Bill getting this focus. The Minister and his officials are to be congratulated for generally making a great deal of information available on websites across the public sector. The plan is to continue to do that, which is fantastic.
There are a few points I wish to raise for the Minister's consideration as he proceeds from the heads of the Bill to the draft Bill. The first is the bodies that are included. It is fantastic that the previous exclusions are being included. The National Asset Management Agency, NAMA, has been discussed at this committee many times. The level of secrecy around it is very unhealthy. The same applies to the National Treasury Management Agency, NTMA. I understand that while they will now be included there will still be a set of exemptions for them. Deputy Fleming referred to this. In my view, the Bill, perhaps with the exception of security, the Garda and defence, should provide sufficient protections for any organisation and certainly bodies such as NAMA and the NTMA. In the case of NAMA, for example, commercial sensitivity would already be included. I would prefer a situation where these bodies do not get exemptions, with the exception of the Garda Síochána and the Defence Forces.
Second, what enforcement powers does the Minister envisage for the commissioner? Will they have the power to sanction or fine bodies which they deem to be non-compliant?
The third issue is commercial sensitivity, which I believe has been abused by one or two State bodies from which I tried to seek information. Bus Éireann, for example, refused to give me passenger numbers. It was making some very important changes and was extraordinarily unhelpful. It refused to give me basic information by hiding behind commercial sensitivity. It is absolute nonsense but it was able to hide behind it. Perhaps the Minister and his officials would look at the potential abuse of commercial sensitivity and how that could be addressed through the legislation or guidelines from the commissioner.
I add my voice to the point about fees. The Minister does not have to respond to this point. There is a great opportunity. In the UK, the new freedom of information legislation has maintained the no fee structure. There are only two reasons for fees, the first of which is to deal with vexatious requests. Section 10 of the legislation already deals with that by allowing the head to say that a request will not be answered because it is vexatious. The second reason is cost. The Minister said the fee charged is a fraction of the real cost and Deputy McDonald is suggesting, I imagine, that the nominal charge does not cover the administrative costs. The UK found the fee did not cover the administrative costs. The Minister's opening statement referred to the public's right to know. The media have a right to know and there should not be a cost. It may be a nominal cost and I note the Minister's reference to the average cost of €23. Local newspapers are very important to a healthy democracy and they really feel the impact of these fees. They are operating on a shoestring. We need local media to be able to get involved in councils and local State bodies, yet some of them will find the fees a problem. The four areas I referred to were no exemptions, the enforcement powers of the Commissioner, a no fees regime and abuse of the excuse of commercial sensitivity.
I have already responded to the exemptions issue, which we will examine. In terms of enforcement, there are no administrative sanctions but it is a criminal offence and there are criminal sanctions against breaches of the Act.
Regarding commercial semi-State bodies, we had this debate in the context of the Ombudsman. Senator Barrett was of the view that no one should be exempt from anything in terms of oversight, which is a legitimate perspective. As someone who supports the semi-State sector, I want it to operate on a level playing field with the non-State commercial sector. The semi-State sector should not be disadvantaged to the extent that its commercial decisions are subject to an oversight or an intrusion in the public domain that hampers its capacity to operate on a level playing field with the non-State commercial sector. We debated it in the context of the Ombudsman (Amendment) Bill and we may have the opportunity to debate it here.
With all the legislation I want to introduce, I want it to be discussed by the committee at an early stage. Any constructive ideas Deputies have, including drafting new sections, will be genuinely considered by me. It is important to get this right. This is more the business of the Oireachtas than of the Executive. I do not regard the Executive as having proprietorial rights or all wisdom on these matters. I will be genuinely open to constructive thoughts on this point.
We have had an open discussion about fees and I set out what I believe. I hear what Deputies are saying. Section 10, which deals with vexatious requests, is not regarded as very effective and it is a matter we are reviewing. In my 30 years of public life, I have come across people taking a down on a particular public servant. Everything the person does is subject to a freedom of information request as a means of torment. It can go on for weeks, months or years as I have seen in individual cases. We must have balance in all of this and I am willing to see what is the right balance. I will be approaching this and the other legislation, such as that on whistleblowers, as a means to build consensus across the House.
I assume the interruptions are accounted for in the time allocated. I will not need all my time. The point about the cost of the collection of fees is significant and worthy of examination.
I welcome that the cost of appeals is being reduced. Does the Minister have data on the number of appeals that are successful? In the spirit of the legislation, does the Minister envisage changing the appeals system to allow more appeals to be successful?
That is like saying that we should have more court cases to be won. It depends on the evidence, the nature of the appeal and whether it complies with legislation.
Will the rules surrounding appeals be changed?
The Minister mentioned bodies receiving significant funding from the Exchequer. Perhaps he can flesh out how he proposes to define significant and whether this amounts to a proportion of funding or changes depending on circumstances. My final question is on the definition of the term administrative in respect of the Garda Síochána. I chaired the joint policing committee of my council and I am sure the Garda Síochána views deployment issues and speed checks as administrative but I welcome information on the definition of administrative, how it is being discussed with the Garda Síochána and how it is progressing.
With regard to the success rate of appeals, I do not have the data but I will see if I can find it and send it to the Deputy. I intervened to answer the other part of the question about tweaking the appeals process to allow more appeals to succeed. We set out the criteria and, as long as the application meets the criteria, the appeal should succeed. If it does not, the appeal should not succeed.
I do not have a fixed view of what constitutes a substantial public contribution to bring a voluntary or other group within the remit of the freedom of information legislation. I am interested in the view of the committee on it and if it may be something the committee could debate. Should 50%, greater than 50% or 80% of an organisation's funding come from the public purse before the organisation comes within the remit of freedom of information? Should it be calculated over a period of time? If a sports club receives a substantial capital grant, I am not minded that it could be suddenly subject to freedom of information legislation. The natural course of events means that when a significant portion of an organisation's running costs, whatever proportion we determine, comes from the public purse, the organisation should be subject to freedom of information legislation.
It will be important. The starting point is 50% of an organisation's funding. We are in the realm of picking a figure and 50% seems as good as any. That completes my questioning and I hope it is within the time allotted to me.
I agree with previous contributions that a cap on appeal fees would be very welcome. The principle of having no fees, as was in the original legislation introduced by Eithne Fitzgerald, is important. It is important to re-establish it because it is a psychological matter for the citizen to know that there is no fee to find out about open government. The principle is important and it is unfortunate that it has taken ten years to put the legislation right after what was done in 2003. I congratulate the Minister and his officials on their work.
I understand the Deputy's principled position on this matter. As I have said, this is simply couching. It is one thing to speak in a theoretical way, but it is another thing to actually provide for a practical regime that does not over-burden systems, such as the local government system, that are already under pressure. If one wanted to make a point about some aspect of the local government system - I am not suggesting one would do so maliciously - one could submit never-ending freedom of information requests, which would impose a significant administrative burden on the system. That is just a practical consideration. I would be interested to hear the committee's views, on a cross-party and collective basis, on whether the principle of a no-fee regime would be a superior requirement. We have looked at this carefully. At the beginning, our general disposition was to have a no-fee regime. As I have said, my own discernment as of now is that a fee of 4% of the actual cost of the work that needs to be done is a tokenistic one. It is like the argument in favour of a prescription charge, which started in Britain before migrating here. People will beat me up for introducing that matter into the debate. The argument was that any charge at all focuses people's attention on the fact that a real cost is associated with the service - it is not all free. I am willing to hear the committee's view on the matter. I think the balance I have suggested is reasonable. It involves a modest initial fee of 4% of the average actual cost in 2011, with a significant reduction in the cost of appeals. The fact that an appeal can cost €150 makes it prohibitive for people to go further. I do not think that is fair. That is why I am proposing a substantial reduction in that area.
I welcome the Minister. I was pleased to hear him say he intends to change how business is done because that is very necessary. According to the comments that were circulated on behalf of the Minister, "the diplomatic efforts underway in relation to banking debt highlight the need for a careful and delicate balance". Surely banking is one of the areas that should be more exposed, in light of the difficulties it has caused for this country. If the Minister has an exemption in mind for banking, he should bear in mind the problems that were caused by a club of people comprising the commercial banks, the Central Bank and the Department of Finance. Information should have been available long before the rubbish was dumped into the Government's lap on 28 September 2008.
In the part of the Minister's speech dealing with section 46, it is made clear that his proposals will "retain the exemption for records provided to Ministers for the conduct of parliamentary business". The Institute of Public Administration has published a book by Dr. Maurice Manning and Dr. Muiris MacCarthaigh that examines the functioning of the Houses of the Oireachtas. In that book, the authors argue that the provision of deliberately misleading answers by the Department of Agriculture, in response to questions asked by Deputy Des O'Malley, led to the beef tribunal. It seems to me that one would not wish such a custom to continue. It is strange for a Member of the Oireachtas to see a Minister nodding in agreement until somebody behind hands the Minister a note and he or she has to say "I am advised that I cannot agree with you". We would like to know what somebody who is not a Member of the Oireachtas says in the note that so persuades the Minister.
When the powers of the Ombudsman were being extended to the Higher Education Authority, we said the first referral would come from Mr. R. Quinn of Sandymount because he could not figure out what the authority was up to either. I think less of that secrecy would be welcome.
While I approve of the way the Minister is treating new entrants, I wonder whether there is any basis in law for it. The Minister has said that all new bodies will be subject to what he is doing and I support that utterly. However, if the great ancestors of the Howlin and Barrett families had cars before car licensing was introduced, we do not provide in law that those two families are exempt from having to licence their cars forever and a day.
The difference relates to the age of the bodies. Some bodies that existed before the enactment of the legislation have this privileged state. The Minister intends to bring that to an end for newcomers. Perhaps all the existing exemptions, other than those mentioned by Deputy Donnelly, should be removed over a period of years.
With the exception of some specific categories we have excluded, everybody comes under the criteria. We have pushed it as far as we can in terms of areas that traditionally fought off any efforts to include them in the freedom of information regime. I refer for example to the financial sector, which has been mentioned by the Senator. I will be a little more explicit in that regard when I reply. I did not answer Deputy Donnelly's question in full. Equally, the defence and security areas will now be encompassed by the freedom of information legislation.
Regulatory bodies seem to have acquired a status that allows them to make decisions that cause serious damage to customers. I refer the customers of airports and energy companies, for example. These bodies operate in a secret world. The relevant parent Departments have long since given up trying to control them. I think the OECD referred to this phenomenon as regulatory capture. Can the regulators be included? They should be required to put the rationale for their decisions before the public.
Another benefit of these proposals is that they will lead to more openness. It is remarkable that elsewhere in these Houses today, the bishops who used to run the country by remote control are having to come in and talk to Deputies and Senators. Such openness is wonderful for the democracy of this country. Those who use so much energy trying to keep things secret and so much time trying to cover things up should have a great deal of more interesting work to do. I am sure many Members of the Seanad will support the cultural change the Minister is seeking to achieve. The requirement to cover up what is being done, rather than disclosing it to citizens, is an amazing cultural inheritance. I do not think it has done the country much good. The Government's legislation on lobbying and whistleblowing will complement these proposals as part of an overall package that is needed following the collapse of governance in this country between 2008 and 2010. It was not just a case of the Government collapsing - if it had been, the problem would have been solved after the 2011 general election. If the Government can bring our permanent administration with it as it tries to change the secretive aspects of the culture of that permanent administration, it will be a major achievement.
The Oireachtas committee that examined this matter quite extensively recommended that Irish Water should be subject to the Freedom of Information Acts. That was one of the committee's 141 recommendations. Is it proposed that Irish Water will be exempt as well?
There has to some caution in this regard. The book by Dr. Maurice Manning and Dr. Muiris MacCarthaigh mentioned that an inquiry into railway signalling, the cost of which had increased from €16 million to €64 million, was one of the victims of the Abbeylara judgment. It is now frozen. I appreciate that the Minister has always tried to counteract that judgment. I understand that a sizeable percentage of the cost of joining the two Luas lines would be spent on new signalling between Lansdowne Road and Howth Junction. CIE can say that is a commercial decision, but I think the Oireachtas must know what is going on. We seem to have a particular problem with signalling. I think the Minister of State at the Department of Transport, Tourism and Sport, Deputy Kelly, wanted to answer the questions we were asking him. Although these bodies are commercial, they know very well where to find the Minister, Deputy Howlin, the Minister for Finance, Deputy Noonan, and the Minister of State, Deputy Hayes, when they are looking for money. In that regard, they are somewhat like the other non-governmental organisations that the Minister for Public Expenditure and Reform wants to include in the freedom of information regime. If I were him, I would tell them that if they want a lot of money for signalling, they will have to be able to tell the Parliament whether the signals in question are gold-plated or normal. The commercial excuse holds less water if the body is hanging around the Department of Finance looking for subsidies.
I will be as quick as I can. A number of important issues have been raised. I will start by dealing with the commercial side of things.
Freedom of information legislation and, as in the case of our discussion of semi-State companies, the Ombudsman, should not be considered the only vehicles for achieving accountability. My strong view for a long time has been that we should have a strong Parliament that holds these types of organisations to account. I wanted to change the Constitution but for whatever reasons, all of which we can debate, voters did not find favour with the proposal. New legislation is before the House and there is no reason all of the organisations to which Senator Sean Barrett referred, including CIE, could not be brought before a committee to explain themselves. Any organisation in receipt of State money should be brought before a committee. It should not be necessary to submit a freedom of information requests as these organisations should be accountable to parliamentary committees. An appropriate level of scrutiny and administrative resources and support should be available to committees to prepare for this work, as is the case in other parliaments.
I remember being told when we embarked on the Abbeylara inquiry that we could have the inquiry but all other committees would be virtually denuded of resources for the duration of the inquiry. We do not resource Parliament sufficiently to do this work. While many Members of Parliament are not interested in doing this work, a significant number of them are interested in doing so and should be empowered to perform this task. I would like such a transformation to take place and I believe there is a mood for this inside and outside the Oireachtas.
Senator Sean Barrett makes a much more fundamental point on the need for cultural change. Legislative change is one thing but cultural change is a horse of a different colour. There is no doubt that the introduction of freedom of information legislation in 1997 resulted in much less being put on paper in terms of notes prepared. In my experience, more junior ranks in the public service became less prescriptive and left more options open to more senior officials to make decisions. Freedom of information changes the way business is done. Perhaps I should not say this but just before leaving a previous meeting, I indicated to a senior official in the European Commission that I was attending a meeting to discuss freedom of information with a joint committee. The official in question stated that the Commission experienced the same issues.
While many Deputies and Senators will be very forceful on the issue of strong freedom of information legislation, they will do a little dance when freedom of information requests are made concerning their expenses and so forth. Cultural change, the notion that we do our business in a public way, is much more difficult to bring about. The corollary of this, and I make this point indirectly to the media, is that we must be allowed to make mistakes without being beaten up. The notion that one cannot make a mistake or be wrong in any public endeavour is daft. The only way to avoid making mistakes is not to do anything. When one is making real-time decisions, particularly in a time of crisis, one will not be right all the time. If one sets out ambitious targets, for example, one is beaten up if they are not achieved. Should we choose not set out targets to avoid being beaten up? Cultural change is the fundamental issue and all actors in the public sphere must be involved in bringing it about.
Regulators are encompassed in the freedom of information legislation and I can provide a list of them. They include the Commission for Aviation Regulation, Commission for Energy Regulation, Commission for Communications Regulation and National Transport Authority.
The Minister is correct in the sense that this welcome and overdue legislation will fix restrictions introduced in the past, while extending its remit to the National Asset Management Agency. However, we also need to move beyond the culture where people need to submit freedom of information requests to obtain information. While the Department is doing significant work in this regard in terms of the information it makes available on its website, this approach is not replicated across the public sector. This issue must be addressed.
The Minister is correct that when people have to submit freedom of information requests to extract information from government, it has implications. Unfortunately, however, this is the case for many people. To cite one example, members of my local authority and the public are not privy to the contents of the contract for a pay parking scheme in my home town. We are consistently informed that this is a commercially sensitive matter. While I am sure that it the case in respect of certain aspects of the contract, it is unacceptable that democratically local representatives and citizens are not granted access to such contracts. Local authorities, in particular, tend to use a broad brush of commercial sensitivity. Similarly, citizens and public representatives have not been allowed to view the contract for a public private partnership to develop a harbour. The Minister needs to examine how local authorities behave in this regard.
To pick up on and extend a point made by Deputy McDonald on retrieval costs, I am very sceptical that the level of the retrieval costs for freedom of information requests indicated are the actual costs. I am also sceptical about the costs associated with parliamentary questions. Certain set costs apply to administration and should not be added when providing information. This issue needs to be examined.
Another issue to be examined is the manner in which records are maintained in the public sector. Some of the retrieval costs and difficulty in retrieving information is due to the failure to keep good records, particularly in local authorities. In other words, the agencies involved must try to dig out the information requested. It would make a significant difference if they maintained the information in a more transparent and accountable manner.
I echo Senator Sean Barrett's point in that it does not sit comfortably that commercial semi-State companies are automatically excluded from freedom of information legislation. On the one hand, bus companies and so forth are seeking bailouts involving significant sums of public money while, on the other, they are stonewalling in the matter of answering questions. The Freedom of Information Act is a tool for obtaining information in cases where semi-State companies refuse to answer questions at parliamentary committees. This issue should be noted.
I agree entirely with Deputy Harris that extracting information is viewed as scoring a great victory, even where the information is often readily available, and freedom of information legislation is often viewed as a means of prising open an organisation to obtain information. This should not be necessary as information should be routinely available except where there is a compelling reason not to make it available. Once this principle has been established, recourse to freedom of information legislation will probably diminish.
I accept the point the Deputy made regarding his experience of local authorities and it is one we will examine. I have responded on the issue of commercial semi-State companies. One cannot have a company placed in a commercially much weaker operating position that a competitor in the private sphere on the basis that it is largely or partially State owned. We cannot give private competitors all sorts of access that one would not otherwise give. If the Deputy has any ideas or would like to craft amendments that could meet his requirements in this regard, I will examine them.
One proposal in my Budget Statement which did not receive much attention was that Ireland join the Open Government Partnership, which was launched by President Obama at the margins of the United Nations General Assembly. Ireland has been deemed eligible for membership, having met the requisite criteria. We have written to the steering committee on foot of an initiative I brought to government at the end of last year. This initiative is working towards achieving openness in the general operation of government. I will circulate details to the Chairman for members' convenience.
While members of the former Joint Committee on the Environment, Heritage and Local Government, Deputy Sean Fleming and I are aware that it is virtually impossible to bring officials of the National Roads Authority before an Oireachtas committee.
In my experience, the National Roads Authority resists efforts to have it appear before the Committees on Transport and Environment, Culture and the Gaeltacht. I am sure Deputy Fleming will agree. The Minister should be mindful that the NRA is not subject to freedom of information inquires and is also extraordinary resistant to coming before Oireachtas committees. HomeBond has also refused invitations to appear before the committee Committee on the Environment, Culture and the Gaeltacht. I accept the company may be a type of hybrid entity and would have been compelled to come before the committee if the constitutional amendment had been passed. The National Roads Authority, on the other hand, is a publicly funded agency. It provided the shortest presentation to a committee that I have encountered in my time in the House. Its opening statement to a meeting was on one page and its officials repeatedly referred to this statement in subsequent discussions with members. Deputy Fleming chaired the Committee on the Environment, Heritage and Local Government at the time.
If the Minister wishes to exclude the National Roads Authority and other bodies from the scope of the Freedom of Information Act, he must consider the matter of compellibility powers in the existing committee structure.
I would be surprised if an organisation like the National Roads Authority was unwilling to come before a committee because I expect it is part of its duty to do that.
We have produced legislation now, subsequent to the decision of the people in the referendum, on the conduct of inquiries. Part of that will be to look at the compellability powers of committees generally, both when in inquiry mode and when in non-formal inquiry mode doing their normal oversight duties. I will take note of what you have said, Chairman.
I welcome the fact that we are discussing the heads of a Bill to extend freedom of information legislation to areas where it did not apply before this. That is a positive development.
We must, however, take open, transparent and accountable government as far as we possibly can. We have an appalling history of secrecy and cover-up which has had devastating effects on our society. That culture must be completely demolished. It is, unfortunately, still present in many areas. Our overriding objective must be to open up government and remove any impediment to the ordinary citizen getting information about how the money he or she pays in taxes is used to administer the State, its agencies and any institution it funds.
In terms of that broad objective I ask the following questions. First, I do not see any justification for fees. I do not see any justification for exemptions. One might say this is a very radical position. There may be exceptions but they should be framed in the legislation precisely as exceptions. I ask the Minister to respond to the following point. The rule should be free and open access to all information for all public bodies, semi-State bodies and all bodies that receive substantial funding. If any of those bodies wants to make a case for information to be withheld in particular instances it should have to make that case. The case can then be subject to appeal. We start with giving information. That should be the rule. If a body wants to say information is, for example, particularly commercially sensitive and its publication would be particularly damaging to the interest of a semi-State body it should have to say that and make that case.
Currently, commercial sensitivity is a catch-all term used to block citizens from getting information about things they have a right to know about. I am at my wits' end trying to get information about Dún Laoghaire Harbour Company. I cannot accept that the inability to get information about that entity can be justified on the basis of so-called commercial sensitivity. There are huge questions about how public contracts are given out. Often, one cannot get this information because of commercial sensitivity. The secrecy of public private partnerships is an outrage. Significant amounts of money are being put into projects and because we are in a partnership with some private entity all information is blocked out because it is commercially sensitive. That has to stop. The public body in question, or the private body with which it is working in conjunction, should have to explain to us why they are not giving the information, or be legally enforced to give it.
Deputy McDonald has already referred to the issue of vexatious requests. We could work on a formula whereby a particular body could make the case that some requests, which will be a tiny minority, are vexatious. That could be subject to a review process. If we include exemptions or fees in the legislation they will become a more general blocker that can be used to inhibit ordinary citizens who have legitimate questions from making reasonable requests.
On the question of what is substantial and significant State funding, percentages and so on, I am particularly concerned about the issue of the banks. Percentages will not work there because we put a lot of money up-front into the banks. I want the legislation to put us in a position where we can question the Bank of Ireland, which got billions, or any of the banks that got large amounts of public money in detail about what is going on, what their decision making processes are and so on. We need to think about that.
We need to open the area of the asylum process, direct provision and deportations. It is a human rights issue.
I do not disagree with the principle Deputy Boyd Barrett set out. It mirrors what I said in my opening statement. We then come to what is practical. We can be aspirational when we are not actually crafting a law that has impact. We have to be practical. We also have to look at what works elsewhere. We are not so unique that we do not look at Sweden, Canada or New Zealand to see how they operate practically. They, practically, have exemptions. There are matters that the greater public interest requires not to be disclosed. They should be rare but they must be there. That is why we have exemptions at all. We have, however, minimised those.
It is interesting that in all the legislation I have brought through, such as the Ombudsman (Amendment) Bill which hugely expanded the powers and scope of the Ombudsman after 40 years, the focus was always on what I was not doing. The proposed Bill will undo a harm that was done in 2003. It will go further than that because it will take on board many of the recommendations of the Information Commissioner. I brought the Bill early to the committee so that I could hear practical views of what we can do.
Fees were brought in because the search and retrieval regime put a notional cost on the burden of providing the information. Deputy Fleming is right. That has got out of kilter now. To abolish fees and impose a reasonable search administrative cost would be dangerous because the cost of that would be prohibitive. We have to be careful what we ask for. My general view is that there should be a modest entrance fee to submit a freedom of information request, the search and retrieval fee should not ratchet up if the search is complicated but there should be a cap on it. That is something I am willing to look at.
I have dealt with the issue of exemptions. In any international regime, in countries that do transparency rather well, or in advices from Transparency International or others there are always exemptions. There are matters of State security and so on which require one, within reason and balance, to have an exemption. One then has an independent authority outside of Government to make the balanced choice between the public's right to know and the potential to do harm to the State or to the Irish people. The Information Commissioner is the person who does that balancing.
Most of the focus has been on the commercial side. I have made the point repeatedly and I do not wish to reiterate it. In normal times, Deputy Boyd Barrett would be in favour of State enterprise. There could be a commercial imbalance between competitors who happen to be completely privately-owned and those that are completely State-owned. In such circumstances one entity would be subject to a regime that would include information requests from its competitors, to which the other entity would not be open. This needs to be considered. These are practical issues. If a decision needs to be made between what is commercially sensitive information and what information is in the public interest the Information Commissioner will make that call. We need to work out how we far we can go. We must avoid an undermining of State enterprises. We want to avoid a situation in which people will not do business with State enterprises because if they do business with a private sector enterprise they will not be subject to the regime. Commercial public companies could be hamstrung and disabled. It is necessary to consider the administrative burden of freedom of information requests on a small organisation. It could be such that it could no longer function. That burden can be imposed by requests which are in some cases badly motivated. The public enterprise so burdened could be a local authority or an agency. There has to be some leavening that is appropriate and proper. I have not closed my mind on this aspect. However, a regime that is 4% on average of the actual cost in 2011 seems to be reasonable.
The Minister referred to enforcement and criminal charges. I wonder if this is too binary in terms of enforcement. In cases in which a State body is dragging its feet with regard to compliance with freedom of information requests which may be low-level nuisance requests, I suggest that a criminal charge would be a rather heavy instrument. Perhaps a small fine to bring the body back in line would be preferable. I ask the Minister to consider a less binary option, so that a softer option is available to the Information Commissioner.
I agree that the semi-State commercial organisations operating in a fully competitive market should not be put at a commercial disadvantage. This is not the case with a monopoly, as, for instance, in the case of much of CIE. That company does not have to deal with competitors on some of its routes-----
If I may contribute on that point, parts of semi-state companies will be monopolies. The State will retain ownership of the electricity grid and the gas network. This is an important issue which was raised by the Chairman and by the Joint Committee on the Environment, Culture and the Gaeltacht. Irish Water will be a monopoly without competition. It is important that Irish Water be subject to freedom of information.
If I may return to the issue of the semi-state enterprises and the question of commercial sensitivity, unlike the Minister, I do not have a problem with State enterprises suffering a disadvantage because I happen to believe that open, transparent enterprise will actually triumph and beat secret, clandestine, privately owned enterprises. That is the difference between the Minister and me. That is the deep ideological divide.
My point to the Minister is that the rule should be that nobody is exempted. The rule should be that the information is given. The burden should be shifted in favour of the citizen and away from exemptions and the whole series of categories of exemptions, whether for semi-state agencies or categories under which other bodies can block the citizen. The entity, whatever it is, should have to make a case for not providing information in exceptional circumstances. I do not think there are that many concrete instances of such information being so sensitive. That is my point. It is a catch-all argument, a label or category without much substance behind it, but it is used by these entities to shield themselves from proper scrutiny and transparency. I am not denying there are cases or instances but I do not agree with the idea that these are so widespread or all-pervasive that all the commercial semi-state enterprises should be excluded. I do not see the justification. There might be particular instances, but why, as a rule, should they be exempted, given that we fully own them?
Deputy Donnelly made a suggestion about how to deal with non-compliance. The Information Commissioner has a strong power to name and shame. This is effective for minor breaches which do not merit a criminal prosecution. The Information Commissioner will now formally report to the Oireachtas committee. An annual report will be issued which will highlight breaches. This will provide the opportunity to make recommendations for future amendment.
On the point about commercial semi-State enterprises, there is a commercial disadvantage if only one side in competition is subject to freedom of information. A publicly owned entity could be subject to a freedom of information request from its competitor. This is a no-brainer. It is obvious that this will be a commercial disadvantage.
On the point about access to information, any commercial semi-State company will have interaction with its parent Department. All such information is subject to freedom of information requests. The Minister responsible is subject to parliamentary questions and to scrutiny by committee. The regulator will receive all the data from that enterprise if it is a regulated entity. The regulator is also subject to freedom of information requests under this regime. Therefore, there is significant freedom of information regulation in all those areas.
I thank the Chairman and members for their consideration of these proposals. I will approach the matter with an open mind and a view to crafting the best possible freedom of information regime. I look forward to the committee's assistance and support in terms of suggestions and amendments that might enhance the legislation.
I thank the Minister for briefing us. The committee intends to invite submissions and presentations from interested parties, which we hope will assist us in making proposals and a report to him. I propose that the meeting be suspended for 15 minutes, after which we will commence our discussion with Mr. Algirdas Šemeta, European Commissioner with responsibility for taxation, customs union, anti-fraud, audit and statistics. Is that agreed? Agreed.