Mr. Mark Tighe:

May I address the point on how to incentivise information officers to respond in a timely fashion? We must have greater oversight from the Office of the Information Commissioner, that is, Ms Emily O'Reilly's office. There is a global right to information ranking in which Ireland is ranked just 44th out of 92 countries that were assessed by Access Info Europe and the Centre for Law and Democracy. One of the reasons for this is because the Office of the Information Commissioner, OIC, has very few oversight powers. We recently did a story on how the OIC has stated it now has 86 staff, which is down from 102 in 2009. However, the Information Commissioner has three hats. She must deal with standards in public office and is the Ombudsman. In this context, she has a lot more responsibilities as so many more bodies have come under the remit of the Ombudsman in recent years. Consequently, that office is being asked to do more with fewer resources and freedom of information has fallen down its list of priorities. Latest statistics show that only 19.5% of appeals to the Information Commissioner were finished and completed within the four-month period set down by statute. The statue provides that the Information Commissioner must deal with appeals within four months, where practicable. While there is an "out" there for the Information Commissioner, one must concede the office does not have the resources to go knocking on doors to ask the reason the body concerned has not responded within this timeframe.

News and records like this are perishable products or pieces of information. If someone is working on policy and the Bill is published and passed but one only gets the briefing documents or the lobbying submissions two or three years later, it is academic. While it might be good for a history book, it lacks news value. One reason Ireland scored so poorly is the exemptions mentioned by Mr. Carl O'Brien on the grounds of deliberative process and commercial sensitivity. In addition, there is an exemption whereby documents prepared for the Cabinet are completely exempt. There is no public interest clause to the effect that such a document should be released in the case of there being an overriding public interest. If one goes back to the bank guarantee in September 2008, we sought access to all briefing documents and memos of the notorious meetings between the Government, the bankers, the Central Bank and so on. It was only on appeal to the Information Commissioner, approximately five or six months after we started the freedom of information process, that the Department suddenly discovered there were two brief and hurriedly written scribbled notes taken by an official that recorded what was said at these meetings. These are very important documents but, unfortunately, the Information Commissioner ruled against us after the appeal. It was decided that this was a document prepared for the Cabinet because apparently, these notes were passed on at the incorporeal meeting. However, it is a very significant document that I believe should be out of the public domain but which simply cannot be placed there under our freedom of information laws. We could have taken a High Court challenge to the ruling but in terms of cost, I do not think I could persuade my editor to take up that challenge.

In respect of one point on which Ms Dearbhail McDonald touched, it is kind of outside the scope of freedom of information legislation but access to court documents is an issue the joint committee perhaps should discuss with the Minister. As members are aware, there is a constitutional right for all legal actions to be carried out in public. However, I cover the courts a lot of the time and one often now sees lawyers standing up in court and telling the judge they will now refer to their written submissions. Unless the lawyer or the clerk will play ball, the reporters will not get to see the contents of such affidavits or written submissions. This is a practice that has evolved from court rules issued by judges.

It is something the committee should examine because as Ms McDonald said, one can log on to PACE or American websites and see what NAMA has filed against Sean Dunne yet we cannot see what NAMA is saying in detail in the case of the Quinns, unless they play ball and give one a copy of the affidavit. The courts are a considerable part of the system of open government. We must open up the area as well.