Brendan Howlin (Wexford, Labour)
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I thank the Chairman for facilitating a debate on two orders under the Freedom of Information Act 2014 - a new Act that we debated at some length.

One order provides for a different effective date for certain bodies under freedom of information, as I indicated would happen. The second order provides for exemptions from FOI in whole or in part for certain bodies. Both of these orders are to be made under section 6 of the Freedom of Information Act and require a positive resolution of both Houses before they are made. That is the reason I am here today. I shall deal first with the effective date order.

In the context of FOI, effective date means the retrospective date back to which records are available once an FOI body becomes subject to FOI.

It is about how far back one looks. Section 2 of the Freedom of Information Act 2014 provides that in the case of a body that was not subject to FOI legislation under the 1997 Act but is subject to it under the new Act, the effective date is 21 April 2008, unless provision is made to the contrary by order under this subsection. We debated that issue for some time. My Department received a number of applications from public bodies requesting that I set a later effective date for the application of FOI legislation to their organisations. I considered these applications very carefully. It was always my intention that any change in the standard provisions in relation to a retrospective date would be agreed in respect of only a small number of bodies where there was a clear justification for having an exceptional date. Therefore, the only applications I agreed to and that I propose the Oireachtas agree to are in respect of the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal, for which I propose an effective date of 14 October 2014, the date of enactment of the legislation, and the Private Residential Tenancies Board, for which I propose an effective date of 21 April 2012 to coincide with the time when that body moved to electronic operation.

I want to explain the rationale for those decisions. These organisations hold large volumes of information, the bulk of which is personal in nature. Where records created before the effective date relate to personal information on the person seeking access to them, the effective date does not apply. When a person is looking for information on himself or herself, the effective date does not apply as he or she is entitled to access such records back to whatever date on which they were created. My agreement to an effective date of 21 April 2012 in respect of the Private Residential Tenancies Board and 14 October 2014 in respect of the Refugee Applications Commissioner and the Refugee Appeals Tribunal does not, therefore, affect this provision. The bulk of non-personal FOI requests these organisations expect to receive relate to third party requests for access to personal information. Given the nature and sensitivity of the personal information involved in respect of the commissioner and the tribunal, we must give these matters very careful consideration. It is difficult to envisage circumstances where there would be a compelling public interest in the release of such records to third parties. However, if the records were to remain subject to release under FOI legislation, each individual record would be subject to review, giving rise to a substantial administrative burden on the organisations concerned. That is why I have given the effective dates as set out.

I move on to the bodies I propose be exempt in whole or in part. As the committee is aware, a generic definition of what constitutes a public body was included in the 2014 Act. This enables FOI legislation to apply to the widest possible definition of public body. Instead of making orders to apply FOI legislation to bodies as happened under the 1997 Act, the new approach means that an order is needed if a body is to be exempt. The default position now is that a body is in, unless by order of the Houses it is out. The old order was that every body was out until it was put in. My Department has received a number of applications for exemptions from FOI legislation and they have been considered very carefully. I have only approved exemptions where it is clear that the application of FOI legislation to these bodies in whole or in part would affect their ability to perform their core functions or affect the security or financial interests of the State. The exemptions I am proposing to the committee and, subsequently to the Dáil and the Seanad cover six bodies. I am only proposing a full exemption from FOI legislation for two of these bodies. I am proposing to exempt only certain records of another three. A technical change is being proposed to the exemption already included in the Act in respect of schools to reflect the original policy I set out when the legislation was going through the Houses.

I will first deal with full exemptions. The bodies for which I am proposing a full exemption from FOI legislation are the Irish Red Cross and the Shannon Group. The Irish Red Cross conforms to the generic definition of a public body because it was established under enactment and would be automatically due to come under FOI legislation in mid-April. I accepted the case made by the Department of Defence that the inclusion of the society for FOI purposes represented an anomaly in that it had to be established under legislation to ensure, in accordance with the Geneva Convention, only one Red Cross society could exist in the State. It is a charitable organisation operating in an environment where both Exchequer resources and charitable donations have been reducing in recent years. The application of FOI legislation would represent a cost for the body which would require a diversion of resources. The application of FOI legislation to bodies in receipt of Exchequer funding, including the Irish Red Cross, will be considered in the context of section 7 of the Act once the application of the Act to this round of public bodies has bedded down. Members will recall that we debated this issue at some length during the passage of the Act. In this way I would not be imposing an administrative burden on the Irish Red Cross as compared to other national and international independent charitable and humanitarian bodies based in this country that are not included as public bodies for the purposes of the Act. I hope that is not too convoluted a way to put it. In other words, charitable bodies in general will be looked at under section 7. The Irish Red Cross is an anomaly because of its unique nature. It is deemed to be a public body having been created under statute as required under the Geneva Convention.

I turn to the other exempt body. The State Airports (Shannon Group) Act 2014 provided for the establishment of the Shannon Group as a commercial company under the Companies Acts and the subsequent transfer of both the Shannon Airport Authority and the restructured Shannon Development which was renamed Shannon Commercial Enterprises to the group. Consistent with the broader policy approach which we debated at some length and which I have been consistent in supporting, commercial State bodies such as the Shannon Group should not be subject to FOI requirements because of the uneven competitive playing field this would create as compared to privately owned competitors which are not subject to FOI legislation. Given the very important responsibilities assigned by the Government to the Shannon Group in terms of regional development of the mid-west region, it is critical to ensure the organisation is able to operate without commercial disadvantage.

I will now deal with exemptions in part. I am proposing an exemption from FOI legislation for the newly established Strategic Banking Corporation of Ireland, SBCI, in respect of certain specific classes of sensitive records because of the very high standard of banking confidentiality expected by market counterparts in respect of such an organisation. I have been advised by the Minister for Finance that if such an exemption was not provided, there would be a real risk that potential funders, on-lenders and clients of the SBCI would not engage with it and that its capacity to perform its functions would be severely curtailed.

I am proposing two exemptions in respect of records of the NTMA, reflecting recent legislative developments of which it was not possible to take account up to now. The NTMA (Amendment) Act 2014 conferred new legal cost claims management functions on the NTMA in considering and adjudicating on bills for costs presented for payment by third parties awarded their costs by the Mahon and Moriarty tribunals. These functions were previously carried out by the Office of the Chief State Solicitor and attracted an exemption from FOI legislation.

It is necessary for an identical exemption to be granted to the NTMA in respect of records associated with these functions in view of the fact that they are performed by the NTMA on behalf of the Attorney General.

The NTMA also has functions in relation to the Strategic Banking Corporation of Ireland. I have set out the case for putting in place certain specific exemptions for the Strategic Banking Corporation of Ireland to meet market requirements applying to banking confidentiality. The NTMA has been conferred with certain functions under the Strategic Banking Corporation of Ireland Act 2014. For the same reasons, these records need to be protected when held by the NTMA in the performance of its functions under the Act. The exemption I am proposing for the NTMA in this regard is a mirror image of the exemption for the Strategic Banking Corporation of Ireland.

The third exemption relates to Oifig Choimisinéir na dTeangacha Oifigiúla. Exemptions from FOI legislation are proposed for Oifig Choimisinéir na dTeangacha Oifigiúla in respect of records relating to the monitoring of compliance by public bodies and investigations under the Official Languages Act 2003 in order that the office is treated for FOI purposes in a way that is consistent with the approach applied to other ombudsman's offices. Oifig Choimisinéir na dTeangacha Oifigiúla operates as an ombudsman in respect of the provision of services through Irish by public bodies.

Consistent with the broader policy approach adopted under the FOI Act, schools with boards of management are already exempt from FOI legislation under the 2014 Act. I am proposing a technical change to the exemption in the draft order to ensure all schools, other than education and training board schools, will remain exempt from FOI legislation.

I am satisfied that the orders I am proposing are limited, modest and necessary for the reasons I have outlined. They are also consistent with the line I have taken throughout the significant debate we have had on completely remodelling the FOI Act to restore many provisions of the 1997 Act and strengthen it even beyond this. The committee will appreciate that, while previously FOI legislation only applied to bodies explicitly scheduled, every body is now in unless it is out. The relevant Ministers have given their consent to the provisions of both orders and most of them, in fact, sought the changes. I look forward to hearing comments members have to make and replying to questions that might arise.