Seán Fleming (Laois, Fianna Fail)
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The first item on the agenda concerns the minutes of 23 March 2017. Are the minutes agreed? Agreed. The next item concerns issues arising from the minutes. I have one matter in which members will be interested. Deputy Cullinane contacted the committee on this matter directly as well. Arising from the minutes of the last meeting and the appearance of Mr. Tony O'Brien, chief executive of the Health Service Executive, who was called in to clarify his earlier statements or correct the record, if necessary, from a previous appearance before the committee when he spoke about the Grace case. During the course of last week's meeting, Mr. O'Brien stated:

As to the full extent of HSE-AGS liaison and engagement on this important matter, certain media reports over the past number of weeks have been incomplete. The genesis of the media reports was information provided in response to a freedom of information, FOI, request. The request was quite specific and sought, "all correspondence between the HSE Social Care Division and the HSE Director General's Office and An Garda Síochána on the subject of the publication of the Conal Devine and Resilience Ireland Reports" from December 2014.

He went on to state:

As set out in the schedule mentioned above, the liaison and engagement with An Garda Síochána between 2011 and 2015 was through the HSE's local office. This correspondence did not come within the scope of the FOI request and therefore would not have been included in the material released. Had the requester included the years 2011, 2012, 2013 and 2014 and included HSE services at local level the information sought and provided would have allowed a more complete picture of the situation, and could have avoided some incorrect media headlines.

While much of the media coverage dealt with HSE contact with AGS surrounding the publication of the Devine report, for completeness it is important to state that the HSE, while aware of ongoing live investigations surrounding the former foster home, did not seek formal clearance to publish the two reports until February 2015.

This is important as we had that special meeting last week as a result of a "This Week" programme on RTE radio a number of weeks ago, which released details of the information that Mr. O'Brien states is incomplete because the request did not take in the sufficient period for release of all the information. He indicated that because of the limited focus of the FOI request, there was incomplete information and various headlines out there.

RTE has made it clear to me that "This Week" lodged a freedom of information request, reference No. C498-16 to the HSE, that was far more comprehensive. The original request on 2 November 2016 sought all correspondence discussing the publication of the Conal Devine and Resilience Ireland report. This request was refused by the HSE on 8 December 2016 and appealed on 22 December 2016. A further request with no time limits was submitted on 20 January 2017 for "all correspondence between the HSE and An Garda Síochána on the subject of the publication of the Conal Devine and Resilience reports". That was freedom of information request reference No. C053-17. In an e-mail dated 23 January 2017, "This Week" was advised by the HSE freedom of information office that the requests I referred to "would not be considered valid" due to the lack of specificity, despite the relatively limited number of people involved in the key decision making around publication. This is at odds with what Mr. O'Brien told the Committee of Public Accounts when he said if the requests had sought more information, he would have got more information and there would not have been confusion.

It is quite clear to me on the face of this that the requester had sought all the necessary information in the first instance. It was refused before being appealed and refused again. The freedom of information requester put in a subsequent freedom of information request which was considered not valid because it was not specific enough. At the third attempt, the requester limited the freedom of information request and it was ultimately answered. That is the one to which Mr. O'Brien referred last week. He gave the impression that had the requester asked for more information, it would have been provided. That is clearly at odds with what appears to be before us now. Mr. O'Brien created a line of new confusion regarding his evidence here the last day in dealing with that matter. We spoke to him last week and said we would be sending on all the transcripts and information to the commission of investigation as soon as possible or this week. We asked him to have outstanding information to us within the week. I am expecting to receive information from Mr. O'Brien before the day is out. When we see that, we will discuss it first thing tomorrow morning as well. It will be a brief point but essentially I am saying if a reply comes in, I would expect this issue to be addressed in that reply we will get from Mr. Tony O'Brien today. If it is not, and depending on how it is addressed, we will deal with it at commencement of tomorrow's meeting.

I put on the record that there is a briefing note on the commission. We all recall that on 9 March the Dáil and Seanad passed a motion to establish a commission. As Chairman of the Committee of Public Accounts, I was very clear that anything we would be doing in this committee would not cross over with the commission that the Dáil voted to establish. However, the commission is not up and running. It is very important that people listen to this now as there was an assumption, once we passed the motion in the Dáil, things would get cracking straight away. My understanding is the Government considered the matter on Tuesday last week. The motion essentially allowed the Government to set up the commission. The terms of reference we saw and discussed, which were laid before the House as part of the motion, were only draft terms of reference. The Taoiseach signed the order establishing the commission last Tuesday week and that establishment order provided for the Minister to formally appoint a chairperson of the commission. I am informed the Minister is proposing to nominate or request an individual to take over as chairperson of the commission in the coming days but it has not happened yet. Subsequent to that it is expected the person will accept the position. After that, the terms of reference published in draft will be approved by the Minister. They will only become terms of reference at that point so they have not been signed off as we speak. At that stage the commission will commence its work. The chairperson has not yet been appointed and the terms of reference have not yet been finalised. The chairperson has not yet agreed to take up the offer. We expect all that to happen in the coming days.

If it is necessary for us to invite back Mr. O'Brien, we will not be interfering with the work of the commission because the terms of reference or chairperson have not yet been agreed or appointed. If anybody is concerned that we are crossing the commission of investigation, we are not, as long as we keep the matter specific to the work of the Committee of Public Accounts. If we invite him here, in the interests of us being precise, we should specify precisely what Mr. O'Brien is to answer. It would be given to him in writing so there should be no confusion. We should all agree the issue is to be dealt with before he comes in. I do not want the engagement to go back over issues that do not specifically relate to what we are dealing with. I have outlined the position and I hope to hear from Mr. O'Brien today.

We will discuss the issue tomorrow morning.