Oireachtas Joint and Select Committees
Wednesday, 5 June 2013
Joint Oireachtas Committee on Finance, Public Expenditure and Reform
Non-Disclosure Provisions Under the Freedom of Information Act: Discussion with Information Commissioner
12:00 pm
Ciarán Lynch (Cork South Central, Labour)
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We suspended before lunch for a brief recess. We will proceed with item No. 9 on today's agenda, the third review by the Information Commissioner of reports on section 32 non-disclosure provisions under the Freedom of Information Act 1997. I welcome the Information Commissioner, Ms Emily O'Reilly, who is accompanied by Mr. Stephen Rafferty. The meeting will proceed with Ms O'Reilly making some opening remarks and we will follow up with a question-and-answer session.
I advise the witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. If you are directed by the committee to cease giving evidence in respect of a particular matter and you continue to so do, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise or make charges against a person or persons or an entity by name or in such a way as to make him, her or it identifiable. Members are reminded 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 in such as way as to make him or her identifiable. Having said that, I call on Ms Emily O'Reilly to make her opening statement.
Ms Emily O'Reilly:
I am grateful for the invitation to meet the committee this afternoon to present my opinions and conclusions on the reports prepared by the various Ministers under section 32(3) of the Freedom of Information Act. Before I comment on the contents of the report that I have submitted to the committee, there are several matters I wish to bring to the committee's attention.
First, the FOI Act requires the first reports of the Ministers to have been submitted to the committee within 12 months of the commencement of the Act and for subsequent reports to be submitted every five years thereafter. Ministers are also required to provide my office with copies of the reports. In keeping with the prescribed five-year cycle, the current review was due to have been carried out in 2009. However, by the end of 2009, only nine such reports had been submitted. The final outstanding report was submitted, by the Department of Finance, on 29 February 2012. Section 32 is a very important provision because it subordinates the access provisions of the FOI Act to all non-disclosure provisions in other statutes, apart from those included in the third schedule to the FOI Act. I stated in my annual report for 2012 that many new non-disclosure provisions had been introduced since the FOI Act became law in 1997. Indeed, Departments are reporting approximately 230 enactments containing non-disclosure provisions, of which approximately 50% have became law since 1 January 1998. I noted in my report that this means as many non-disclosure provisions have been introduced since 1997 as were introduced in the preceding 75 years. In my view, this highlights the importance of ensuring that reviews under section 32 are conducted in a timely fashion as required by the FOI Act. On a related matter, I ask the committee to bear in mind that the reports of the various Departments do not necessarily capture all of the non-disclosure provisions currently in existence, given that nine of the reports are more than three years old at this stage.
The second general comment I would like to make relates to my experience of having presented my previous report to the then Joint Committee on Finance and the Public Service in 2006. While my views on the matter are already on the public record, I believe it is worth repeating that I was disappointed that, of the 36 secrecy clauses from a total of 150 identified where I disagreed with the relevant Minister as to whether the secrecy provision should be made subservient to the FOI Act, the committee's recommendation was to support the relevant Minister in every case. I was disappointed in particular that the committee gave no explanation of any kind, or any explanation in its report, as to why it opted for one set of recommendations over another. I have decided to make this comment here today, if for no other reason than to highlight the importance I attach to the review process this committee is undertaking and to urge it to bear in mind that section 32(2) of the FOI Act requires that in conducting the review, the committee should have regard to the provisions, purpose and spirit of the FOI Act.
As the committee can appreciate, my report is rather long and technical and I do not propose in the course of this presentation to go through it in detail. I will confine myself to some general observations on the approach I have taken. Naturally, if the committee has any questions on specific provisions mentioned in the report, I will be happy to deal with them.
As a general proposition, I take the view that all of the secrecy provisions should be subject to FOI except where there is a very clear case for exclusion. It is important to note that the FOI Act does not apply at all to certain records held by public bodies. For example, the Act does not apply to non-administrative records held by the offices of the Director of Public Prosecutions and the Attorney General. Furthermore, Part III of the Act has specific exemptions to protect records for various reasons, whether by virtue of their coming within a specified class or to protect against certain specified harms likely to arise were the records released. The FOI Act is not there to do harm, as I have said on many occasions, and, in my view, the current safeguards in the Act are generally sufficiently robust to protect all of the important interests of the State.
I would also like to draw the committee's attention to my views on those statutory provisions deriving from EU law. It has been argued that where non-disclosure provisions do no more than implement EU law, it is not appropriate to include any of them in the Third Schedule. My view is that, by and large, such non-disclosure provisions should be included in the Third Schedule, where the protections and exemptions of the FOI Act can be applied, unless the source EU directive explicitly prohibits disclosure in any circumstance. It is also important to bear in mind that a confidentiality provision does not equate to a non-disclosure provision.
This leads me to my final comment. The committee will note some instances in my report in which I question whether certain provisions can be regarded as prohibiting access under FOI given that the provisions apply "save as otherwise provided by law". I take the view that such provisions do not constitute absolute prohibitions of the type envisaged by section 32(1) of the FOI Act to support the refusal of access to information under the FOI Act. If the committee agrees, it may wish to consider recommending the inclusion of such provisions in the Third Schedule to remove any doubts on the matter. That concludes my opening address and I am happy to deal with any questions the committee may have.
12:05 pm
Ciarán Lynch (Cork South Central, Labour)
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I will take questions in sequence in a 12-minute round of questions and answers. Before commencing, however, I would like to bring Ms O'Reilly back to her reference to her previous engagement with this committee in 2006. She expresses some disappointment with that meeting. Could she elaborate on that? It was before my time in the House and certainly before I became Chairman of this committee.
Ms Emily O'Reilly:
I actually had an excellent engagement with the committee at the time when Deputy Fleming was Chairman. We thrashed out many matters. Whatever happened and whatever interactions and concerns there were outside the committee room, I believe the Whip was applied - maybe for the first time in this committee - and when the report came out it amounted to a single paragraph. The rest was annexes and so on with the Departments' reports. If I recall correctly, the paragraph stated "In every instance where the Information Commissioner disagrees with the Minister or vice versa we support the Minister". Clearly, that was disappointing, particularly in light of the excellent engagement we had.
If I may refer to particular conversations, we discussed, for example, section 53 of the Education Act, which is still there and trumps the FOI Act in respect of a citizen's or individual's access rights to inspection reports on schools. I took the view that citizens, parents and families and anybody who wished to see these should have a right to do so. Subsequently, there was quite a brouhaha about access to these school inspection reports and they are now freely available on the website of the Department of Education and Skills. Just before I came out here I looked them up and counted over 2,000 inspection reports that are freely available, yet an individual has no statutory right to see them under FOI. That was one particular issue that arose. As the saying goes, that was then, and I hope we will have a good engagement today and perhaps a different outcome.
Ciarán Lynch (Cork South Central, Labour)
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To elaborate on that, in her opening address Ms O'Reilly mentioned 36 secrecy clauses from a total of 150 identified on which she disagreed with the Minister's assessment. Forgetting about the disagreement with the Minister, are those ratios still the same? Does Ms O'Reilly's concerns about those 36 secrecy clauses still exist, or has the ratio changed?
Ciarán Lynch (Cork South Central, Labour)
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They have not been addressed since 2006.
Ms Emily O'Reilly:
No. I should point out that where I mentioned reports by Departments, 11 out of the 15 were compiled under the previous Administration. I am not making a party political point here but, as the Chairman knows, there has been a rethink about FOI. We expect quite a progressive new Bill to go through by the end of the year so in a way we are in limbo. I am not saying the Departments do not still hold these views but am pointing out that most of the reports arguing for the retention of the secrecy clauses were compiled quite a few years ago.
Ciarán Lynch (Cork South Central, Labour)
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Given that most of the present committee members were not Members of the House in 2006, would Ms O'Reilly summarise those 36 issues? I do not expect details of each of the 36.
Ciarán Lynch (Cork South Central, Labour)
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A few more financial bodies have been created since then, such as NAMA.
12:15 pm
Seán Fleming (Laois-Offaly, Fianna Fail)
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I welcome Ms O'Reilly. I ask her to explain the last paragraph on page 1 of her presentation more slowly because it is complicated. Section 32 is a very important provision because it subordinates the access provisions to the FOI Act to all non-disclosure provisions in other statute, apart from those included in the Third Schedule to the FOI Act. I ask her to break that down in steps for me. Ms O'Reilly will probably appreciate that the majority of people do not know what is in the Third Schedule to the FOI Act. She might discuss those points. The presentation refers to non-disclosure provisions in the Third Schedule and that Departments recommend the non-disclosure provisions which should be included in the Third Schedule.
Ms Emily O'Reilly:
There are non-disclosure provisions in many pieces of legislation, as the Deputy knows, and they remained in place even after the FOI Act was introduced. Under the Act if any of those provisions is included in the Third Schedule it means that, in effect, the FOI Act trumps them. The non-disclosure provisions are still in place but are referenced in regard to the exemptions and permissions within the Act. If a non-disclosure provision is included in the Third Schedule it is possible that records may still be released by reference to the FOI Act. For example, they might be released in the public interest or under a number of provisions within the FOI Act. If they are not included in the Third Schedule, that is it.
Seán Fleming (Laois-Offaly, Fianna Fail)
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As Information Commissioner, Ms O'Reilly's wish would be that more items would be included in the Third Schedule.
Ms Emily O'Reilly:
Yes, so that can be tested against the provisions of the FOI Act. For example, if the non-disclosure provision in regard to inspection reports under section 53 of the Education Act are included in the Third Schedule it means they can be released by reference to the FOI Act, as opposed to simply saying that they are not included, therefore nothing can be released. Some of the non-disclosure provisions in regard to financial bodies such as NAMA, the National Pensions Reserve Fund and other agencies should be included in the Third Schedule in order that records can be released in regard to the provisions of the FOI Act.
Seán Fleming (Laois-Offaly, Fianna Fail)
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Fortunately or unfortunately I was on the committee which dealt with this issue. It was complicated and we had trouble drafting a report. I ask Ms Reilly to comment on, for the benefit of everyone else, any of the Departments mentioned. Page 34 refers to the Department of Health and says 24 non-disclosure provisions are already included in the Third Schedule. The Department has them, Ms O'Reilly is happy with them and that is the end of that. Page 35 says the Department recommends that the following non-disclosure provisions should be included in the Third Schedule. It is happy that they should now be included.
Seán Fleming (Laois-Offaly, Fianna Fail)
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Ms O'Reilly is happy with that. The next schedule on page 36 refers to the Department of Health and states that the Department recommends the following non-disclosure provisions should not be put into the Third Schedule. Ms O'Reilly agrees with some of it and disagrees with other aspects.
Seán Fleming (Laois-Offaly, Fianna Fail)
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The Schedule where the Department wants to exclude something from the Third Schedule is the section we are discussing because we are agreed about the other aspects. The top of page 36 refers to the European Communities (Active Implantable Medical Devices) (Amendment) Regulations 2009. The Department wants to exclude it but Ms O'Reilly disagrees and wants to include it. I will not go into the specifics, but I ask Ms O'Reilly to comment on it in order that we understand what we are doing. There are three Schedules for most Departments but we are only interested in one.
Ms Emily O'Reilly:
For example, under the health area, one which we would both agree should not be included in the Third Schedule is the hepatitis compensation tribunal. The Department of Health made the point, with which I agree, that the confidential nature of the information relating to claimants supports exclusion from the Third Schedule.
Seán Fleming (Laois-Offaly, Fianna Fail)
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That is No. 3 on page 37.
Seán Fleming (Laois-Offaly, Fianna Fail)
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I had a quick read of the report. Page 1 has an appendix of all Government Departments. I counted approximately 100 items in those Schedules to be included. Ms O'Reilly agrees with the Department's recommendation to exclude 48 items and disagreed with it on 52 items. It is a 50-50 split. The Chairman referred to a 36-50 split. The only point at issue today are the 52 cases on which Ms O'Reilly disagrees with the Department. She agrees with those in the Schedule and those included by the Department. She also agrees with those which the Department said should be excluded.
The only matter at issue is where Ms O'Reilly disagrees with the Department trying to exclude them. The issue is complicated. A Schedule on page 34 may not be relevant. I referred to the Department of Health because it is a prominent Department. I will refer to some cases and ask for Ms O'Reilly's observations. She might comment on cases where she disagrees with the Department, such as the Dentists Act 1985, the Nurses Act 1985, the official control of foodstuffs regulation and section 30 of the Health Act 2004. She may not have the details of those cases, but I ask her to give us a flavour of why the Department does not want them included. That is the nub of our discussion.
Seán Fleming (Laois-Offaly, Fianna Fail)
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I am on page 37 of the report.
Seán Fleming (Laois-Offaly, Fianna Fail)
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She agrees with the Adoption Act. We all understand there are privacy issues. I also referred to the official control of foodstuffs regulation and the Health Act. I asked her to take us through why she disagrees with the Department in those cases.
Ms Emily O'Reilly:
The Dentists Act and Nurses Act concern information relating to fitness to practise inquiries. The Department said the non-disclosure provision should remain. It anticipates new legislation. The point I made when I dealt with this the last time was that fitness to practise inquiries have a major public interest element. If particular interests need to be protected I would argue they are sufficiently protected within the FOI Act. It is as simple as that.
Seán Fleming (Laois-Offaly, Fianna Fail)
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I agree with Ms O'Reilly. There is a note on page 39 about the Dentists and Nurses Acts and the Department expressed concern regarding information on fitness to practise. She said privacy issues and individual personal interests are already well covered, but the Department is afraid to let her adjudicate on it.
Ms Emily O'Reilly:
The following is common to most of these. Certainly, there are interests that needs to be protected, but the public interest also needs to be protected. Certain areas are obviously sensitive for practitioners and people going before them. In a lot of areas dealt with in the report the various Departments want black and white certainty. They want to know certain things will not be released under any circumstances. There is sometimes a reluctance to trust in the ability of someone like me or anybody else to make a call that is genuinely in the public interest and does not do harm.
In my introduction I said that the FOI Act is not there to do harm. I am mindful of all the interests at stake in any decision I make. I can honestly say that in the past ten years I have been Information Commissioner no ruling of mine has caused any particular harm. It is always down to a matter of trust. The fact that the FOI legislation is being amended and would appear to be more liberal and progressive points to the fact that there is a greater concern for the public interest, possibly arising out of events in the country over the past number of years, and that the private interests of individuals sometimes need to be challenged a little more robustly in regard to the overall public interest at play.
12:25 pm
Seán Fleming (Laois-Offaly, Fianna Fail)
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Some Departments wish to exclude items from the Third Schedule. Ms O'Reilly gave the example of the school inspection reports. These are not included but the Department has published them on its website. In a way it is better because one does not need to go through the FOI system and the website is more convenient, which is better for everyone.
Ms Emily O'Reilly:
Absolutely. I refer to the recent news story about the crèche inspection reports which can be released under FOI. However, they were not being put up. That is probably an argument to be made by politicians rather than the Information Commissioner that these reports should be released as a matter of course, as is the case with reports on nursing homes.
Seán Fleming (Laois-Offaly, Fianna Fail)
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Ms O'Reilly has touched on another good point. As a Deputy I have experience of seeking information from various bodies.
The Committee of Public Accounts requests information from bodies which it is investigating and it may only receive a certain amount of the requested information. However, a journalist making an FOI request will be given more information. There is an anomaly. It seems that public officials have greater protection in issuing information under an FOI request. Various officials in different Departments have advised me to encourage my client to submit a request under FOI and they will release the information. It seems they need the legal mechanism of an FOI request.
Seán Fleming (Laois-Offaly, Fianna Fail)
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The report notes that many non-disclosure provisions have been introduced since 1997 and that 50% of the non-disclosure provisions have been introduced in the past five years. A Government has the right to have non-disclosure provisions. However, I recommend that there should be a formal mechanism for notifying the Information Commissioner when this is being applied. Legislation is being passed every week, some of which may include a non-disclosure provision, but the Information Commissioner cannot be expected to read every Dáil debate.
Seán Fleming (Laois-Offaly, Fianna Fail)
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Is that in the annual report?
Ms Emily O'Reilly:
No, it is in this report. The Act was severely amended in 2003 and I do not think there was an appetite for restricting it any further. Rightly or wrongly it appeared to me that the method of restricting it was to take bodies out of FOI when they were subsumed into new entities. In some cases the new bodies were not included in FOI by the introduction of the non-disclosure provisions.
Seán Fleming (Laois-Offaly, Fianna Fail)
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There are non-disclosure provisions with regard to the European Central Bank. The Government is probably concerned regarding FOI requests for Central Bank information which might release information about the ECB and other countries.
Ms Emily O'Reilly:
There are processes in place. Each member state has a duty to inform anyone from another member state making an FOI request about the state of play as regards transparency and obligations in that state. The person can then choose whether to send the information. When European legislation is transposed into Irish law it is then regarded as Irish law and therefore should be subject to the same transparency and data protection obligations applying to everything else.
Seán Fleming (Laois-Offaly, Fianna Fail)
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A number of these items which are excluded from the Third Schedule are EU directives. Why is information on EU directives being restricted? It seems bizarre.
I compliment Ms O'Reilly on an excellent and concise report. I did not read every line of it but the gist of it is very clear and understandable.
Dara Murphy (Cork North Central, Fine Gael)
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I congratulate Ms O'Reilly on her report, which is a broad area of work. Ms O'Reilly referred to public interest consideration when she attended committee hearings in the period January to March. One of the issues that crops up in some of our recommendations and in her report is the issue of the public interest test, to determine exactly what is in the public interest. For example, I refer to the issue of Bus Éireann and passenger numbers. One can argue about whether Bus Éireann is a monopoly. What is the public interest aspect of knowing that information? Who would conduct the public interest test? Sections of the report refer to the body itself undertaking the test while the committee recommended a co-ordinated public interest test undertaken by Ms O'Reilly's agency or some other body.
Ms Emily O'Reilly:
The public interest is a moveable feast and it can be in the eye of the beholder. If there is a public interest override to a particular exemption, for example, one might find that certain records contain confidential information but nonetheless the exemption includes a public interest override so it is necessary to strike a balance between the various public interests in play. The body has an obligation to carry this out at the first stage and my office has an obligation to carry it out when it is being reviewed.
I refer to a particular case in the recent past in the Supreme Court. It might be a little strong to say that the case redefined the public interest. My office never invented a particular public interest but the wording used in the judgment was that it had to be a recognised public interest. In other words, it had to be an established public interest. I refer to a particular case where a gentleman was attempting to find some birth information relating to his late mother as he had been put up for adoption. In that case the court found that there was not an established public interest.
Mr. Stephen Rafferty:
We found there was a public interest in availing of FOI to source tracing of origins information. The Supreme Court decided that was a private as opposed to a public interest and that a true public interest has to be inherent in government policy or otherwise by law. It is not simply a matter of the Information Commissioner importing private interest into the public interest arena.
Ms Emily O'Reilly:
I refer the Deputy to my observations about NAMA and NTMA. There are non-disclosure provisions and it will be interesting to see how they play out once those bodies are included under FOI. The debate is around the definition of the public interest and who calls it. Presumably certain bodies with a particular expertise, whether in health or finance or managing public funds, will regard themselves as the guardians in those areas. However, as Information Commissioner I have been entrusted to make those decisions and these can be difficult. I must have regard to commercial sensitivities or private personal interests. My office puts a lot of time and thought into this work and in general we get it right.
Dara Murphy (Cork North Central, Fine Gael)
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My second question is about the commercial sensitivity aspect. The committee was broadly in agreement that State-funded bodies should be included. I refer to the definition of monopoly with regard to commercial semi-state bodies. Bus Éireann pretty much has a monopoly and Bord Gáis Éireann has lots of subsidiaries but it is self-funding whereas Bus Éireann takes a very large subsidy from the State.
That also applies to the banks. We are moving to a point where perhaps some of them might become private companies. How does Ms O'Reilly envisage the definitions of a monopoly and a semi-state company working? I note the suggestion that there would be restricted provision for semi-state companies. How does she envisage this working, particularly for profitable semi-state companies?
12:35 pm
Ms Emily O'Reilly:
There are a number of factors involved and this is something that is being thrashed out as the Bill moves further towards completion. There is a realisation that, by definition, semi-state companies operate in the commercial world also. These interests have to be guarded to ensure their competitors will not be given a competitive advantage over them by virtue of the fact that they are not subject to FOI legislation. This is something that has to be carefully calibrated. I cannot say where exactly it should come down in terms of percentages and so on. The amount of public funding is an issue because one of the things that has defined FOI legislation and influenced most of the seminal decisions made in recent years has been that where there is public money involved, there is a public interest in seeing where it goes. It is a question of balancing the semi-state companies' ability to operate, be competitive and make profits with the public interest in knowing where our money is going. There have been many conversations around that issue and presumably when the Bill comes back to the committee, that discussion will continue. It would be difficult to a take slide rule approach to it and say where exactly it should come down. They need to compete with the private boys who do not have to show anything within the normal rules of disclosure and regulation, which has to be balanced with the fact that there is a great deal of taxpayers' money involved and we need to know where it goes.
Dara Murphy (Cork North Central, Fine Gael)
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The Minister, Deputy Brendan Howlin, did not have a view as to whether the funding to be given to non-commercial or non-profit NGOs and so on should be at a level of 50% or even 80%, which is a broad range. Ms O'Reilly might not want to give a figure in that respect, but does she have a view on the matter?
Ms Emily O'Reilly:
No. A small community football club or small community enterprise might receive a certain amount of public money and one might think the threshold was so low that it should not even apply. It is a matter of adopting a common sense approach which will be difficult to do. I do not know whether it is amenable to a one-size-fits-all approach, but I hope a rational means of arriving at a fair decision that respects the public interest will be reached eventually.
Mary Lou McDonald (Dublin Central, Sinn Fein)
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Cuirim fáilte roimh bheirt agaibh anseo inniu. I welcome our guests and it is great to have both before the committee.
I wish to return to some of Ms O'Reilly's opening comments. She noted that by the end of 2009 only nine Departments had returned the reports as required under the FOI Act for the purposes of a review. To what does she attribute the delay by these Departments that returned reports late? I note the Department of Finance was three years late in returning its report. How did that come to pass?
Ms Emily O'Reilly:
I do not know. It would be wrong of me to suggest reasons and obviously those in the Department will have an opportunity to speak for themselves. I imagine that events post-2008 diverted attention away from these matters. I have observed from 2003 onwards and most of my early years as Information Commissioner that there was no great enthusiasm for FOI legislation throughout the public administration and that this seeped through it. I do not think officials who might have been charged with undertaking these tasks necessarily thought they were going to get into trouble if they were a little late in returning them. It was the general view of FOI legislation at the time that it was not a priority and, therefore, issues such as producing these reports which I, as Information Commissioner, regard as very important were put on the back burner, but it will be down to the individual Departments involved to comment on this.
Mary Lou McDonald (Dublin Central, Sinn Fein)
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I hold the view that even today the public administrative system has a cultural issue with disclosure and the provision of information. I have a sense that it is overly protective and secretive. Ms O'Reilly, interestingly, instanced the assessments and reports on schools and crèches which were amenable under FOI legislation which should have been in the public domain, yet there has been a reticence within the system to share information. Does she share that view and has she seen any change in that respect during her time in her role? Has she seen any progress and, if so, to what degree in the cultural element of sharing information?
Ms Emily O'Reilly:
There are peaks and troughs. When the FOI Bill was first introduced in 1997 and started to take effect in 1998, there was great enthusiasm for it. It was seen as an instrument of good governance in bringing the citizen closer to the State and it was considered that it would be good for the State. In the first few years a number of reports were commissioned by various bodies which talked it up, but then things went sour. A number of decisions were made, either at an initial level or at the level of the Information Commissioner, with which the public administration was not very happy. When the amending Bill was introduced in 2003, one could track particular decisions to the amendments that had gone through. For a period throughout most of the early 2000s it was not deemed to be a priority and all of these non-disclosure provisions were introduced without reference to us. Sometimes people walked in off the street or rang us to tell us certain things were off the FOI radar and we had not been informed of these decisions.
What cued change was the crash. We noticed in our work - public bodies would also have noticed it - that relatively few bodies had been bothered by FOI requests, but suddenly there was a slew and an enormous increase in appetite for accessing public records. People wanted to know what had caused the crash, the ingredients, as it were, within the public administration, whether they were still there and whether they could be rooted out. That led during the last general election campaign to much political debate and many political promises of greater transparency. It was seen, rightly or wrongly, that the absence of transparency and also the absence of an appetite for transparency when everything was going so well had partly contributed to the crash.
The new Government made promises in relation to the FOI Act. The proposals now on the table which are still being worked on are progressive, even as they relate to the initial 1997 Act. I am on record as having said on a number of occasions that the devil would be in the detail. For example, I am pleased that it is intended that bodies such as NAMA, the NTMA and the Central Bank will come within the remit of FOI legislation, but to what extent will they come within its remit? Will non-disclosure provisions still be used to trump FOI requests and in the end will we see records of significant public interest? There will be big battles ahead in the judging of a particular commercial interest and whether the public interest overrides it. Any fair assessment of the work this office has done during my time would not show that I have taken a cavalier approach to these issues and there are certain records which broadly people might have considered to be in the public interest that have not been released by me because I take the views of public bodies very seriously.
Mary Lou McDonald (Dublin Central, Sinn Fein)
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I thank Ms O'Reilly for that response. I would like to raise a number of individual issues with her, but I know that the Cathaoirleach will not indulge me to that extent.
Ciarán Lynch (Cork South Central, Labour)
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The Deputy is dead right.
Mary Lou McDonald (Dublin Central, Sinn Fein)
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Therefore, I will zero in on the Department of Justice and Equality.
On page 41 of her report the Information Commissioner disagrees with the Minister in two areas, namely, the Refugee Act and the Employment Equality Act. I raise the subject of justice most particularly because it is one on which the Information Commissioner has spoken previously. In particular, in respect of immigration, and all matters pertaining to refugees and their status in the State, there is certainly a common conception, not least among refugees, that there is a veil of secrecy and that the system is almost impenetrable. I ask the Information Commissioner to say a few words on the two items mentioned on page 41 of her report. Thereafter, she should offer the joint committee a broader commentary on the subject of justice and the basket of issues pertaining to the immigration process, refugees and asylum, as well as her views thereon in respect of transparency, accountability and the availability of information.
12:45 pm
Ms Emily O'Reilly:
In respect of the Refugee Act, this relates to confidentiality regarding the identity and nationality of people applying for asylum. The exemptions in the Freedom of Information Act are to be found in sections 26 and 28 and pertain to records given to a public body in confidence and personal information, respectively. Both sections have public interest overrides which I have been discussing. I again make the same point that there are sufficient protections in the Freedom of Information Act to deal with that issue. I follow closely issues on asylum and immigration and in reference to my earlier comments, this is one area in which there is a reluctance to allow anyone else to oversee decisions made about such matters. I will put it like this: it is a sensitive issue that straddles many important areas of public life, from the welfare of asylum seekers to security issues and all sorts of other things. I do not wish to speak for the Department and this is simply my assessment based on my experience in the past ten years, but the Department perhaps takes the view that it alone has the knowledge, expertise and awareness of the public interest to be able to make the correct decisions on these matters. I take the view that any body should be amenable to external oversight. I refer to the role of the Information Commissioner or rather to that of the Ombudsman and note that most of these matters are outside my remit. However, in respect of those matters that I can consider, if I am looking at particular decisions, it is not that I would wish to substitute my decision for that of the Department. I am speaking as the Ombudsman as opposed to the Information Commissioner, but it is more that the role is to make sure the proper procedures were followed; that is what is critical. Consequently, it is not that I am making a judgment on whether someone should be given asylum or whether a person's family can join him or her or anything like that. All I would do simply is look at the procedures they are supposed to follow, up to and including whatever human rights obligations they have, and ensure they are followed.
The same applies to freedom of information legislation. Someone must ensure the public interest is safeguarded, both for the sake of people who are citizens of this country and for the safety, security and welfare of people who are coming to our shores for whatever reason. There have been a number of media reports on these issues in the last while, of which the Deputy may be aware. There are a lot of concerns about them - I am sure they are shared within the public administration - but there is nothing like transparency for all of us to discern what is real, what is imagined, what is gossip or what is actual and to make decisions based on us all being adults and having access to the information we need to have to make informed decisions about such matters.
Mary Lou McDonald (Dublin Central, Sinn Fein)
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I wish to make one final remark. Does Ms O'Reilly have a sense that the Department of Justice and Equality, the public administration, is moving towards the position she has outlined? I refer to the issue of culture.
Ms Emily O'Reilly:
My colleague has been more involved than I have in dealing with the Minister, Deputy Howlin's Department, namely, the Department of Public Expenditure and Reform, on the Bill and will be able to fill in the Deputy in this regard. However, as Ombudsman, I appeared before the Joint Committee on Public Service Oversight and Petitions and spoke about the continued exclusion of asylum and immigration issues even from the amended Bill. It took decades for immigration issues to go through and I know the Department of Justice and Equality has plans for a new Bill or that such plans are on the stocks or somewhere else which will deal with many of these matters. At the time I told the Joint Committee on Public Service Oversight and Petitions that when this legislation was passed, its members should take a look at the oversight provisions to ascertain whether it was independent and whether it met the criteria they thought probably should be in place to ensure independent oversight. I told them that if it was not there, they would need to consider this point because I have stated many times that I am probably alone among ombudsmen in Europe in not having that particular area within my remit.
The Chairman might allow Mr. Rafferty to respond on the issue of freedom of information legislation.
Mr. Stephen Rafferty:
In my experience of engagement with the Department of Public Expenditure and Reform it has been extremely committed to the widest possible expansion of freedom of information legislation. I am aware that some very strong voices were heard concerning just how far the amendment Bill would go, but my understanding or certainly my experience has been that many of the arguments have been met head-on. Again, we will wait to see what is included in the published Bill, but there certainly has been some resistance across public bodies in terms of expansion.
Ciarán Lynch (Cork South Central, Labour)
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I have two questions to clarify a point made by Deputy Mary Lou McDonald while summing up. In the previous round of this process there were 150 situations where there was disagreement between the Information Commissioner and the then Government. From what Ms O'Reilly has stated, I assume she has received a written explanation of the reason the Government of the day or the Department was in disagreement with her with regard to the disclosure of that information. Is this correct?
Ciarán Lynch (Cork South Central, Labour)
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Yes, but written explanations were received from each Department of the reason it had disagreed with the Information Commissioner in this regard.
Ciarán Lynch (Cork South Central, Labour)
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Okay, although it is not the job of the committee to be in agreement with any body that comes before it in such a process. I revert to the issue raised by Deputy Mary Lou McDonald to flag it with Ms O'Reilly because members would like to read her material and there might be no harm in her reading our material also. In our draft report we are extremely conscious of the concerns about refugee management and the whole asylum seeking process. One comment that has been made is that this could be a Magdalen laundries story in the making, in that in 20 years' time we will be reading back on how things have happened now. However, to remind members, the joint committee's draft report on this matter contains five specific recommendations. One concerns the Reception and Integration Agency and how it functions should come under the freedom of information legislation because many private contractors are operating under its aegis. As they are performing the food and security operations, their terms of reference and contracts should be brought under the scheme. In addition, information has been placed before members to the effect that there is no database of how many refugees or asylum seekers have died. As regards the children or siblings of people who have died here, there are questions about the burial arrangements made and whether such persons are buried here or whether the remains are repatriated to the country of origin. I do not believe this information is available either, which is upsetting for family members who find they have a relative in Ireland and wish to ascertain where the remains are.
We are seeking to have the freedom of information legislation applied to the Garda National Immigration Bureau and the Irish Naturalisation and Immigration Service.
One must also consider aspects of direct provision systems as covered by the FOI legislation. I include the supply of goods and services. Who has the potato contract? Ultimately, it is believed the Office of the Refugee Applications Commissioner is no longer exempt from the FOI requirements. This is an area in which this committee is possibly in agreement with the general tone of what was said by the Office of the Information Commissioner.
12:55 pm
Joe Higgins (Dublin West, Socialist Party)
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Could Ms O'Reilly elaborate on her thinking on the Merchant Shipping (Investigation of Marine Casualties) Act 2000?
Joe Higgins (Dublin West, Socialist Party)
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Merchant shipping.
Ms Emily O'Reilly:
This is an interesting one in that the Department is saying the body is not a prescribed body for the purpose of the FOI Act. I have said I disagree with the Department's recommendation and recommend that section 18 be included in the Third Schedule. This relates to very important investigations in regard to accidents at sea.
Ciarán Lynch (Cork South Central, Labour)
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With regard to a tragedy dealt with during the term of the last Dáil, the committee and the Minister were in confab with regard to some information in a report. Does this matter stem from that?
Joe Higgins (Dublin West, Socialist Party)
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The commissioner's last sentence was that she was particularly mindful of the public interest dimension that could attach to information in this area. I agree strongly.
Ms Emily O'Reilly:
The Department has made a mistake. It is claiming that it does not come under FOI at all, but it does. It should be within the Third Schedule because of the nature of the work that it does. If there are any particular interests that need to be protected, they will be fully protected under FOI provisions.
Joe Higgins (Dublin West, Socialist Party)
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It is important that this be clarified and sorted out. Ms O'Reilly stated section 18 relates to confidential information obtained by the Marine Casualty Investigation Board and provides that disclosure without authorisation constitutes an offence. Do fishing and trawling fall under the provision? Ms Reilly cannot be an expert on the Act all of a sudden - nor can I - but-----
Joe Higgins (Dublin West, Socialist Party)
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There is an issue with regard to trawling and fishing, for example, and the conditions in which many workers are taken on. This has serious implications for safety, leading to accidents. The same is the case with merchant shipping. It is important that there be clarification.
Ms Emily O'Reilly:
It sort of mirrors what happened with the Health and Safety Authority some years ago. Its inspection arm was taken outside FOI, but this was not communicated to us. It seems to be on all fours. If there are interests to be protected, they can be protected under FOI provisions rather than by having a blanket exemption. The Department has made a mistake in any event, in that the body in question is under FOI.
Joe Higgins (Dublin West, Socialist Party)
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Whose role is it to clarify that? Is it the role of the commissioner or the Oireachtas?
Mr. Stephen Rafferty:
Our point is that that body is subject to FOI. The Department's position is that, notwithstanding that, there is a non-disclosure provision in the legislation that protects the confidential information and regards unauthorised disclosure as an offence. We interpret the stipulation on disclosure by the body without authorisation or by law as allowing for a right of access under the FOI legislation. If one were to include the non-disclosure provision in the Third Schedule, it would allow for consideration of the public interest. If the non-disclosure provision remains outside the legislation, there will be no option for an independent review or for consideration of public interest arguments.
Joe Higgins (Dublin West, Socialist Party)
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In regard to the notification and investigation of air navigation accidents, the Office of the Information Commissioner takes a somewhat different view. What is the position? Is there an international dimension?
Mr. Stephen Rafferty:
That is the approach we had taken previously in regard to this legislation. There is an international aspect to the requirement or necessity to conduct the types of investigation in question. It was deemed that this was sufficiently important not to require the same considerations as would apply in respect of the marine casualties legislation.
Simon Harris (Wicklow, Fine Gael)
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I have four questions. I refer Ms O'Reilly to her opening statement on her last review and the report to the committee in 2006. I want to tease this out a little. There is clearly a procedural issue or, to use Deputy McDonald's phrase, a cultural issue. If there were 150 occasions on which the Office of the Information Commissioner disagreed with the Department's interpretation, it obviously put together a significant body of associated work. Its representatives appeared before an Oireachtas committee and argued their case. The commissioner outlined why her office disagreed and the committee, by implication, found her to be incorrect, for want of a kinder phrase, on 150 occasions. This is not possible. Is the process flawed? It must be extremely disheartening for Ms O'Reilly to have come before an Oireachtas committee-----
Ms Emily O'Reilly:
I will begin by saying that was then and this is now. There is a new spirit in Oireachtas committees in regard to how they view themselves, their role and their powers, particularly vis-à-vis the Executive. I have appeared before quite a few committees in recent years and have detected a change.
On the Deputy's question, there is obviously a lot of work involved. My office spent a lot of time doing it. This is not an issue as it is part of my office's responsibilities. Equally, the Departments have put in a lot of work. As I stated and as Deputy Fleming will remember, there was excellent engagement. Questions were asked and the Department's views were put. As the Chairman stated, committee members are not bound to agree with me; nor is the Department. Committee members make up their own minds on these matters.
At the time in question, I had a strong feeling that there was agreement on many areas. I did not expect to achieve agreement in every area but found it a bit strange not to have agreement in any area. It concerned the mood at the time in regard to FOI. There was general negativity in regard to the matter. There was an unwillingness to let go of the levers of control and allow an independent body, set up precisely to carry out effectively, ethically and well the role assigned to it in the legislation, to carry out its functions. Other obstacles got in the way. At the time in question, there were members of the committee on all sides who were very unhappy with that.
I do not know, as an outsider, precisely what went on, although I know the outcome. Professionally, it was quite frustrating at the time as one felt that one had been asked to perform a certain job under the law and was doing so to the best of one's ability. It was as if one had come out on the football pitch to play a game but no one else was playing. It was frustrating but it was a cultural issue. In certain areas, however, I felt while the Office of the Information Commissioner and the idea of public transparency lost the battle, they won the war. For example, because of the brouhaha caused not just by the committee hearing on the school inspection reports but also by certain court cases, the Department of Education and Skills got the message and moved to publish all inspection reports. What was very instructive about that issue was that certain bodies, including the INTO, were saying it was Armageddon, that the entire education system would collapse and that we would get crude league tables coming out as a result, but none of those harms resulted. There are almost 3,000 whole-school evaluations available and I challenge anyone to make a league table out of them, crude or otherwise, because the language in them is terribly bland. "There is a lovely English teacher here. They do geography very well. The paint is peeling a little bit but the fences are neatly trimmed." That is the language. It is a bit of a hobby horse of mine.
1:05 pm
Simon Harris (Wicklow, Fine Gael)
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I want to take Ms O'Reilly to her current report in order to educate me on it. I find it astonishing, in relation to health, for example, that there are 28 issues the Department is seeking to exclude. Of those, Ms O'Reilly disagrees with the Department on 22. That works out at approximately 80% of cases in respect of which she has a different view from the Department. With regard to cultural change, transparency and openness, how can we have a situation in which Ms O'Reilly and the Department sit down with the same legislation and guiding principles on freedom of information and come to different conclusions?
Ms Emily O'Reilly:
Perhaps it is because, with regard to certain health matters, I am not being lobbied. There are other interests at play, I presume. Members of the medical profession, dentists and pharmaceutical companies all have interests, as is their right. Perhaps they have certain views and have been able to convince the Department that certain harms would arise. I know I sound a bit like a broken record at this point but there are sufficient protections within the Freedom of Information Act to prevent all of those harms. It is the role of all of us, including the Department, the committee and the Office of the Information Commissioner, to look fixedly at the public interest and make our decisions accordingly. That is not to say that people do not have an absolute right to voice their concerns. Professional bodies may bring a certain level of expertise and awareness to bear. Equally, that awareness and expertise can be brought to bear where a decision has to be made on the release of a particular record.
Simon Harris (Wicklow, Fine Gael)
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By implication, is Ms O'Reilly expressing concern that lobbying by professional bodies, which she recognises is their right, is skewing the view of Departments in their interpretation of the Freedom of Information Act?
Ms Emily O'Reilly:
I am not saying that. My officials and I look at the Act, the opening recitals of which talk about its spirit, and make decisions accordingly, confident always of the protections in the legislation. Even if I lose the head and decide to order records to be released which might cause harm, the protection of the High Court and the Supreme Court can be invoked. There are a lot of protections there. My colleague wants to say something on certain of those health exemptions and the EU.
Mr. Stephen Rafferty:
There are a significant number of non-disclosure exemptions on which we disagree with the Department of Health on the basis of EU law. The fundamental approach of some public bodies and Departments is to transpose EU law almost verbatim and to take the position that to impose the freedom of information regime on top of that goes beyond the purpose of the adopting legislation. We do not accept that. There is a difference of opinion.
Simon Harris (Wicklow, Fine Gael)
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The witnesses have touched on NAMA. Given the way the situation is developing, are they satisfied that we will end up getting the information the public desires or requires from NAMA?
Ms Emily O'Reilly:
What I know is on the public record and in the public domain in any event. NAMA objected initially to being subject to the freedom of information provisions. Its chairman, Mr. Frank Daly, made comments in that regard and stated that his view was that NAMA's work was so commercially sensitive and important to the country that its confidentiality must be ensured. I take the view that the work NAMA is doing is so important that there must be a certain amount of oversight and vision as to what it is doing. No organisation is perfect and, as such, all organisations can be helped by transparency. Mr. Rafferty spoke about robust debates which had taken place on NAMA. The Department of Public Expenditure and Reform stuck to its guns on NAMA and other bodies and it will be before the committee in that regard. When the news was announced, I said the devil would be in the detail. While a body might be included in the regime, it may be that all one is allowed to see is the number of paperclips it gets through in a week. On the other hand, a body might be included in such a way as to provide an insight into how it works. This will be difficult as they are the experts, but there are enough individuals in my office and in the superior Courts who have a reasonable grasp of the public interest and can make the correct decisions. It will be for Oireachtas committees such as this to make a call on how effective the regime is when they see the full flowering and what is coming out or not.
Stephen Donnelly (Wicklow, Independent)
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I thank Ms O'Reilly for her report and for attending today. I tried to read a lot of the report but it is very technical. While I acknowledge that there is a great deal of technical law involved, it is not written in the most accessible way. I wonder if that is something the office would look at for the next report.
Ciarán Lynch (Cork South Central, Labour)
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There is freedom of information and there is understanding of information.
Stephen Donnelly (Wicklow, Independent)
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Exactly. I found it difficult to digest.
Ms Emily O'Reilly:
I take the Deputy's point. I find this quite an excruciating exercise as well. It is like doing leaving certificate maths. There are a few items that even now I must read very closely. That is partly because we prepared the report a while ago and partly because there are so many matters involved. We will attempt to make the report clearer. I was grateful to Deputy Fleming for making it clearer earlier on. One fights fire with fire, which is why a particular type of language is used in the reports. One must speak to that particular kind of language. I accept that it is not very accessible.
Stephen Donnelly (Wicklow, Independent)
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There are a few areas on which I would like to get Ms O'Reilly's thoughts. I want to go back to the issue of culture. While we can put all of the correct mechanisms in place, any human system will find out how to game most of them. I was struck by the fact that the Department of Finance took three years to revert to the office. Has the office found that there are good and less good areas within the public sector and Departments when it comes to this work?
1:15 pm
Stephen Donnelly (Wicklow, Independent)
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Yes, or generally. We all interact with Departments all the time. I know Departments that I find very useful in terms of giving information and Departments, or elements within them, that go to great lengths to ensure one gets nothing. Perhaps it is not a fair question. If she is not comfortable answering it that is fine, but I would genuinely be interested in her view.
Ms Emily O'Reilly:
I am thinking about it. I try to answer everything put to me. It tends to be difficult to put it in the context of this or that Department. The Revenue Commissioners can be remarkably good to deal with and have certainly upped their game with regard to their processes in the past number of years. Due to the way the Department of Justice and Equality is set up in respect of the protections it is afforded regarding its records under FOI and the fact that key areas are outside the remit of the Ombudsman, that Department tends not to give as many records out simply because it is not legally obliged to do so. I do not like to keep harping on about it but there is a culture within that Department going back through the history of the State. Perhaps the Department finds it hard to trust in bodies outside its own culture to make what it would see as the right decisions because we might not be aware of this or that factor. Obviously, I do not agree with that.
We have quite significant issues with the Department of Health concerning the seeking of records and we have ongoing discussions with it. When it claims that a matter is outside my remit, we try to rebut that but it can be very difficult. The culture in that Department stems from the pressures it is under, the fact that it is continually fighting on so many fronts and the fact that the health service is formed in a particular way but changes a few years later so the personnel change and so on. It is like trying to grab on to a moving object. It never stands still.
In respect of culture, the Departments of Justice and Equality and Health might be the most difficult to deal with. Most Departments do their best. There are two different cultures at play. There is the political culture and the culture of the administration of the Civil Service. When I reference the fact that 11 of the 15 reports that are here predate this current Administration, I cannot say whether the Administration and administrators still hold to this and are now out of kilter with politicians or whether if they were to do them again, they would have a different view because there is a different political culture.
Stephen Donnelly (Wicklow, Independent)
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It seems the Information Commissioner has been ignored by the two groups she just referenced. She has been ignored by the political apparatus. If I understand matters correctly, none of the 36 recommendations made by her was taken on by the last committee. This appears to show that she has been ignored by the political establishment. It has taken three years to get this report from the Department of Finance. That suggests that she has been ignored by various parts of the administrative establishment as well. Does her office have sufficient power and sanctions? I know she cannot sanction politicians but does she have any power to compel Departments like the Department of Finance to provide her with information, which is a statutory requirement, when they continue to ignore her?
Ms Emily O'Reilly:
It is a requirement under the law for Departments to do that. If they are ignoring me, one could also argue they are ignoring Parliament or this committee by not providing these reports.
Ms Emily O'Reilly: It is a requirement under the law for Departments to do this. If they are ignoring me, oen could also argue that they are ignoring Parliament or this committee.
Stephen Donnelly (Wicklow, Independent)
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We are well used to that.
Ms Emily O'Reilly:
Welcome to my world. Sometimes we get involved in issues with Departments or public bodies and we know it is a long play and that one might get slapped back at the beginning but that over time, one will win the war. I stated my disappointment at what had happened before in respect of the committee. There were a few other incidents that took place during the last Administration which could have had a detrimental effect on the ability of my office to work effectively on behalf of the people of this country. One of them was the Lost at Sea report, which we will certainly not revisit during this meeting. A committee again split on party political lines, agreed with the Department and that was it. The fallout from that in terms of conversations in the media and among parliamentarians and political parties and comments I made at the time about the proper relationship and power balance between the Executive, Parliament and committees such as this one fed into a wider debate which informed some of the thinking of many political parties during the election. As a result of that, we have had a number of major changes. At last, the Ombudsman (Amendment) Act was passed and the FOI legislation is coming through. For the first time, I have, as Ombudsman, a dedicated committee, namely, the Oireachtas Committee on Investigations, Oversight and Petitions. I submit that all this stemmed from the fallout from either the issue I had with this committee or the other ones. It engaged the political and public mind and, over time, had an excellent result.
Obviously I have had to deal with setbacks, but I used every occasion to name what is going on and to say that it was not a kick at me but a kick at Parliament or the people. It is down to Parliament, as the custodian of all this, to decide what it is going to do about it. I play my part and then step back. It is a matter for others to step up to the plate.
Stephen Donnelly (Wicklow, Independent)
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I agree. I would like to address two recommendations. One relates to NAMA and the other to the credit institutions scheme, both of which relate to the Department of Finance. Her recommendation is that both institutions are covered by FOI within the protections of the Act. Can we start with the credit institutions scheme? I guess I have the same question on each. I will give her an example in a second but I would like to hear her thoughts on what should be available that is not available. For example, I imagine she would say that within NAMA, there are some things that should not be publicly available for legitimate reasons of commercial sensitivity. I will give an example of something with which I am dealing. It is not possible to find out how much money was guaranteed by the deposit guarantee scheme in September 2008 per institution. The reason given is commercial sensitivity. This happened five years ago and was a public guarantee of private funds. The Department of Finance maintains that this is commercially sensitive, which is absolute nonsense. Under NAMA-----
Stephen Donnelly (Wicklow, Independent)
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The Department has the information but it refuses to release it because, apparently, information about how much covered banks were holding in deposits of up to €100,000 five years ago is commercially sensitive. That is an example of what I am dealing with as a parliamentarian. I am interested in hearing her view about the type of information relating to the NAMA and the credit institutions scheme that should be covered by FOI but is not currently covered and the recommendation in her report.
Stephen Donnelly (Wicklow, Independent)
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We looked at a parliamentary question. It turns out that the Minister of State with responsibility for public service reform and the OPW, who was in opposition at the time, asked a parliamentary question and was told he could not have it because it was confidential information.
1:25 pm
Ms Emily O'Reilly:
I could not make a judgment on that without hearing the arguments or having it appealed to me. If it was appealed to me, obviously I would listen to what the organisation had to say and why it thought the information was commercially sensitive, and would consider the public interest concerns before making a judgment. In regard to what records would be revealed, when it comes under FOI it will have to produce what are known as section 15 manuals, which give a general glossary of the records it holds, the sort of things it does and the processes it has in place. This would give an indication of the type of records that could be accessed. The records could include everything from personnel through procurement to correspondence with Departments, the Revenue Commissioners and people trying to buy property. Everything is potentially accessible through an FOI request.
Perhaps one can stand back to consider the public interest in this. Clearly the public interest is that NAMA should work and that its processes safeguard the public interest and allow it to make a good commercial fist of its work. That is not necessarily my concern as Information Commissioner. I am aware this is an overused term but it is a matter of public trust. In the years leading up to the crash we trusted people and organisations, whether regulators or banks, to do the right thing but it was only when we saw what happened that we started to question them. I understand the reluctance of bodies such as NAMA to come under the FOI system or to release too much information given that its work is clearly commercially sensitive but its work is also of public interest. It must also realise that part of the basis on which it can work well is by enjoying the confidence of the public and, indeed, politicians and committees such as this. In order to earn our trust, we need to have confidence in it and, therefore, to be able to see a sufficient amount of what it is doing. I do not know how much money NAMA is dealing with but it is a sizeable amount and given the amount of control it enjoys, the number of individual transactions it takes and judgment calls it makes on a daily basis it is my view that it would be in the public interest to see a little more of its business. That is not to say as Information Commissioner I would be releasing records incontinently. I, too, must have regard for the public interest. Any good organisation or public body that comes to us will argue in the public interest exceptionally well if it writes down all the public interest arguments for disclosure, as well as those for non-disclosure. That should be done so that I and, in time, the courts can take a particular view.
There are three stages before requests come in. First, organisations come under FOI. Second, when members see the legislation they will be able to judge for themselves how transparent these bodies are likely to be. Third, we will see what records they hold in a broad sense. It is only when the outcomes of the requests are known that we will be able to determine the level of transparency.
Ciarán Lynch (Cork South Central, Labour)
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I will be proposing that the committee correspond with the Secretaries General of each Department to ask, having engaged with the Information Commissioner, that they outline in detail why they disagree with her report and recommendations.
Ciarán Lynch (Cork South Central, Labour)
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Is that agreed? Agreed. It is not for us to make a value judgment on whether the relevant Department or the Information Commissioner is right but to get an explanation as to why this is happening.
Has Ms O'Reilly ever made a recommendation to the effect that information currently in the public domain should be withdrawn from it? In my experience, the Data Protection Commissioner takes a default position with regard to the sensitivity of data. I imagine there is also a default position in respect of the Information Commissioner that as much information as possible should be public. I am not making a value judgment; I simply presume that is the beginning position in respect of all information. Has Ms O'Reilly ever made an observation in respect of information in the public domain that she believed should not be public?
Ciarán Lynch (Cork South Central, Labour)
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In regard to Ms O'Reilly's earlier career, we learned from our meeting with representatives from the NUJ that information becomes a commodity when it is restricted. It was suggested to the representatives that if information was publicly available they would not get a scoop. Certain journalists are known for pursuing freedom of information requests. They may be tipped off about matters or simply have a good nose. Our job is not to provide the media with scoops by changing the freedom of information legislation. We are responsible for allowing the public to achieve better accountability from government and the services it provides. One of the suggestions we have been considering is that some sort of umbrella structure be put in place for journalists irrespective of whether they are freelance or employed by newspapers. If we are providing for freedom of information to general citizens, that is fine, but freedom of information requests from journalists have a bottom line, namely, to sell more newspapers. Should there be a charge for them?
Ms Emily O'Reilly:
As Information Commissioner I cannot comment on the motivation of individuals making requests. I do not take that into account. They are applying as journalists but they are also members of the public. A member of the public could request a particular record as validly as a journalist. How would one draw a distinction?
In regard to the Chairman's first point, if I reflected on the records that I had seen, some of which I did not rule to be suitable for release, I do not recall many that would have tilted the world on its axis. Much information is kept secret or out of the public gaze for irrelevant reasons or simply for the sake of it. Public bodies could make life easier for themselves if they took an honest look at their records and asked themselves if there is any genuine reason they could not be put on their websites. As members will be aware, Sweden traditionally had a liberal regime whereby everything was published. It has been argued that the public in the UK were better served under that country's equivalent of the Official Secrets Act than the people of Sweden. So much information was publicly available in Sweden that people assumed there was nothing to find, whereas in the UK it was assumed that lots of interesting information was hidden away and people went searching for it. Journalists will always do their thing and I do not think they can be put into a separate category from members of the public who, for example, are looking for a particular record based on interests in a community project or their own intellectual pursuits.
1:35 pm
Ciarán Lynch (Cork South Central, Labour)
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Does Ms O'Reilly have a view on how the legislation would be structured and whether it would deal separately with the private citizen as opposed to corporate agencies such as media organisations in terms of application?
Ms Emily O'Reilly:
It has to be a free-for-all. A few years ago one Department put all FOI requests online in order that a journalist's FOI requests would be visible to everybody, but there was nothing I could do about this because it was open to the Department to do this. I am not sure if it is still doing it.
Ciarán Lynch (Cork South Central, Labour)
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On the flip side, has the Office of the Information Commissioner received complaints where there might have been disclosures of information, not necessarily through FOI requests, that might have been confidential and come under the brief of data protection - for example, medical information? Has the office ever received complaints about the disclosure of personal information such as medical, criminal or banking information or financial transactions in which people might have engaged?
Ms Emily O'Reilly:
That would probably arise from third party interests. Typically, we might have made decisions or rulings in the past to release information. We talked about inspection reports. We would have to consult the third party because we would generally be releasing the information in the public interest, acknowledging there was commercial sensitivity or personal information but that there was a public interest in releasing it. The third party would have an opportunity to say certain information should not be released for whatever reason. Generally, unauthorised disclosures of information would be more of a data protection issue.
Ciarán Lynch (Cork South Central, Labour)
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Is it placed on the Information Commissioner's desk?
Ciarán Lynch (Cork South Central, Labour)
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I have a question on the general oversight of confidentiality clauses regarding the Central Bank and the insolvency legislation which is working its way through the system. Certain targets have been met - by the end of this month 25% of unresolved mortgage books have to be put in place. One of the features is that the banks are engaging on confidentiality clauses with customers. I do not have a difficulty with this because somebody could avail of a write-down of €25,000 and before it gets out the other door of the bar the figure has become €150,000; therefore, there has to be some restraint on the information. However, I am concerned about how the Central Bank gains access to that information and its level of oversight to see to it that there is uniformity between the banking institutions. Has the Information Commissioner given any consideration to this? It is not so much an FOI issue, but the Central Bank which operates on willowy ground would have access to information.
Ms Emily O'Reilly:
Again, I imagine that would be more of a data protection issue. On the information getting out under FOI legislation, the very strong exemptions in respect of personal information would apply. If people had issues with bodies having information they should not have, it would clearly come under data protection provisions regarding the unauthorised use of personal information.
Ciarán Lynch (Cork South Central, Labour)
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One recent item of correspondence we received brings this subject to mind. There is a recommendation in our draft report also under the heading of professional secrecy provisions as asserted and amended in various Acts since the Central Bank Act 1942. The correspondence details how somebody went to inquire about a bank's behaviour in such a matter and the bank could not disclose to the complainant whether the matter had been investigated or the outcome of any investigation. Before Matthew Elderfield's departure he said the Central Bank was engaged in looking at that matter. There is a FOI context to this issue because if the matter cannot be addressed in the context of FOI legislation, it should be addressed within the revision of the legislation governing the Central Bank. Does the Information Commissioner find that in the way the Central Bank deals with its own internal information some of the information comes into conflict with her role of ensuring information is available to customers?
Ms Emily O'Reilly:
Some of the Central Bank's records are held by other bodies and people can access them, but the central body will not come under FOI legislation until the legislation goes through. The Chairman is telling me about these issues and they speak very much to the public interest and the protection civil liberties. These matters will be teased out only when people begin to use FOI legislation to access these records.
Stephen Donnelly (Wicklow, Independent)
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The Chairman's first question was on the Information Commissioner's opinion on the new legislation dealing with the fee regime. Is that correct? Was that the Chairman's question?
Ciarán Lynch (Cork South Central, Labour)
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Yes.
Stephen Donnelly (Wicklow, Independent)
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Now that the Chairman has let the scope of the meeting creep towards the new legislation - I am eternally grateful for his leadership in this regard - I would be very interested to know the Information Commissioner's view on whether the new legislation should introduce a fee for FOI requests. The committee has debated this issue at some length.
Ms Emily O'Reilly:
The €15 standard processing fee has not changed since 2003. It is free to access personal information and there is a reduced fee for accessing medical records. I am not hugely exercised about that fee. I was hugely exercised about the fee for an appeal to my office because it was a barrier to oversight. By the time a person got to my office the total fee was €240. In an ideal regime there would be no fees. If these discussions are ongoing, it would probably be worth looking at best practice overseas. The United Kingdom considered bringing in fees four or five years ago and decided not to do so based on the principle that the records belonged to the people, that there should be transparency and that it did not chime well if they had to pay for them. My major concern was about the fee for an appeal to my office. There is a strong argument to be made that there should be no fees, but it is down to people here to argue that point.
Stephen Donnelly (Wicklow, Independent)
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We will. I thank the Information Commissioner. I would very much like her thoughts on the fact that in the new insolvency legislation there will be a publicly available list of those who have availed of insolvency deals. The committee has dealt with this issue. To my mind, it is a name and shame policy. We do not know who the bondholders are; we do not know how much was guaranteed, but a person who avails of the legislation will have his or her name and the details on a publicly available site. In her role does Ms O'Reilly think that is reasonable or should that information be protected?
Ms Emily O'Reilly:
Are people going to discriminate? There will be small people involved in these agreements, as well as the bigger boys and girls. There is a question of fairness and equity in that regard. If it came to me as an FOI issue, I would be asking what was the public interest in releasing the details of some couple's or family's insolvency arrangements versus the public's right to see that this was not being abused by individuals. I cannot give a blanket "yes" or "no" answer. Intuitively one would say it was not fair to people who were caught because the banks threw too much money at them and they were caught in negative equity. At another level one might say it was fair because they were in hock for so many millions or billions of euro and it is only fair that we see what happens now.
I repeat what I have said several times - it is a matter of balancing of public interests. I would not give a "yes" or "no" answer to it.
1:45 pm
Ciarán Lynch (Cork South Central, Labour)
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I thank Ms O'Reilly and Mr. Rafferty for coming before the committee. We will go into private session momentarily to deal with one or two matters. The Select Sub-Committee on Public Expenditure and Reform is due to meet at 5.30 p.m. with the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, but I have got word that he will not be here until 6 p.m. We will, however, still meet at 5.30 p.m., call the meeting to order and then suspend until 6 p.m.
The other matter relates to the comments of Deputy Sean Fleming this morning on the report of Ms O'Reilly to the committee this afternoon. I will speak to the clerk to determine where the interface is with regard to the Bill and the secrecy clauses. We may need to separate these issues in our report, but we will work that matter into the agenda for next week.