Brian Hayes (Dublin South West, Fine Gael)

I move amendment No. 1:

To delete all words after "That" and substitute the following:

Dáil Éireann:

noting the intention of the Government, as committed in the Programme for Government:

— to legislate to restore freedom of information;

— to extend its remit to other public bodies including the administrative side of the Garda Síochána, subject to security exceptions; and

— to extend freedom of information to ensure that all statutory bodies, and all bodies significantly funded from the public purse, are covered under the legislation,

resolves that the Freedom of Information (Amendment) (No. 2) Bill 2012 be deemed to be read a second time this day nine months.

I thank all the speakers. I am very impressed by Sinn Féin's belief in freedom of information, in addition to freedom of movement and freedom of speech. I am sure that when the army council meets, the issue of freedom of information will be very high on its agenda, as I suspect it has been over the years.

I sincerely congratulate Deputy Fleming, whom I understand published this Bill approximately a month ago. The matter has been selected under the lottery rules and the Bill is now in the House. This is an example of how Friday sittings can deal with serious legislation. Every Member of the House has a contribution to make in that regard.

I very much agree with Deputy Pringle's statement on the original Act. When it was introduced by the rainbow Government in the 1990s by the then Minister, Ms Eithne Fitzgerald, it led to a cultural change within local government. It is an amazing achievement that it was not merely about informing citizens of their rights within local authorities but that it led to a cultural change within these organisations. This must be recognised. It is an example of legislation which can improve public administration.

As I stated, I congratulate Deputy Sean Fleming. I want to set out the view of the Government of the Bill which we support in principle. The provisions of the Bill relating to an extension of freedom of information legislation to certain public bodies are aligned with the relevant commitment in the programme for Government which envisages the extension of freedom of information provisions not only to those statutory bodies currently outside the terms of the Acts, but also to other bodies which are in receipt of significant funding from the Exchequer. The provisions relating to other matters included in the Bill can be broadly characterised as seeking to improve certain aspects of the operation of the Freedom of Information Acts. This objective corresponds to an important element of the proposals being finalised by the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, for consideration by the Government.

Notwithstanding the fact that the Government supports the objectives of the Bill, given that the Minister for Public Expenditure and Reform will, in due course, be bringing forward his own detailed and extensive proposals for consideration in the House and in proposing the approach outlined in amendment No. 1, it is important to recognise that the programme for Government deals not only with the proposed extension of the Act, but also its restoration. In this context, the Taoiseach, speaking in this House on Tuesday, reiterated the Government's intention to restore the Act to what it was prior to 2003. He has highlighted the fact that most of the complaints received in respect of the Freedom of Information Act relate not to the processes by which information is obtained but to the restrictions that apply to the information that can be released. While the proposals included in the Bill to improve the Act are welcome and will be considered further as part of the development of the legislation, the Minister's proposals are significantly more far-reaching. In overall terms, for these reasons, while the Government sincerely welcomes the Deputy Sean Fleming's proposals, the legislative proposals to be brought forward by my colleague, the Minister for Public Expenditure and Reform, in due course following approval by the Government will secure a more substantial and valuable goal. This, therefore, informs the amendment proposed by the Government to the motion which I hope, on this basis, will be supported by the entire House. As the Taoiseach advised the House earlier this week, the current position on the delivery of the Government's commitments in respect of freedom of information legislation is that a great deal of work has been carried out by the Minister for Public Expenditure and Reform on the Freedom of Information Act. A comprehensive and detailed assessment has been undertaken by the Department of the key steps and priorities relating to the implementation of these commitments. The views received from other Departments of the Minister's freedom of information proposals are being considered and it is planned to bring proposals to the Government in the coming weeks to secure approval for the drafting of amending legislation that will reform the Act.

Turning to the Bill, Deputy Sean Fleming's proposals provide for a number of specific public bodies to be brought under the Freedom of Information Act. As I have mentioned, the proposals are consistent with but do not go as far as the programme for Government commitment to extend the Act not only to all statutory bodies but also to non-statutory bodies in receipt of significant public funding. The Minister for Public Expenditure and Reform believes the experience and track record of freedom of information legislation since its introduction in 1997 demonstrates that the increased transparency it can engender can significantly enhance the quality of decision-making and yield substantial benefits in value for money terms for the Exchequer. Deputies can find examples of these positive benefits in the report entitled, Freedom of Information: The First Decade, published by the Information Commissioner in May 2008. The Minister is, therefore, committed to having as comprehensive an approach as possible to the extension of freedom of information legislation. He believes the question of partial application should only arise in the most exceptional circumstances - a principle which, in fact, was enunciated by the high level group of Secretaries General, the report of which, as Members will recall, was a significant input to the amendments made to Freedom of Information Act in 2003. For example, in the case of the Central Bank, the Minister accepts that there is a need for some restrictions on the application of the Act to reflect professional secrecy obligations under EU financial services directives and the European system of central banks statute which supersede any requirement under domestic law. In the case of the EU financial services directives, these prohibit the disclosure of institution-specific information.

Another case in which a partial extension must apply is that of An Garda Síochána, in respect of which the Government is committed under the programme for Government to applying the Act to its administrative functions, subject to security records exceptions. In this regard, it is important to recognise that some administrative records may relate to security or intelligence activities and the release of such records may potentially have substantial adverse consequences for these activities. Officials from the Department of Public Expenditure and Reform have been working with officials in the Department of Justice and Equality to ensure the commitment in the programme for Government can be delivered on in a manner which fully respects the requirement to exclude security and intelligence records, as well as those records relating to the operational functions of An Garda Síochána, from the scope of freedom of information legislation.

Clearly, looking across all public bodies not included in the Act, particular considerations relating to the scope and extent to which freedom of information provisions might apply in individual cases may be expected to arise. In this context, the Taoiseach has made it clear to the House that final decisions in all these areas, as arises in the full gamut of proposals relating to the restoration and appropriate modernisation and extension of freedom of information legislation, are ultimately ones for Government and the House to take.

Deputy Sean Fleming proposes that where a freedom of information request is received by a public body and the release of that information is assessed to be in the public interest, it should be published. The Minister supports this proposal and has asked me to advise that the Freedom of Information Act specifically acknowledges that a freedom of information request is not the only means of accessing information and that nothing in the Act is intended to interfere with alternative administrative arrangements for access. The Minister's proposals highlight the case for the proactive publication and release of records and the adoption by public bodies of proactive publication policies on official information. There is, however, an important legal consideration to be addressed - where official information is released outside of the Act, the various immunities provided for under the Act against possible criminal or civil liability do not apply. It will be necessary to examine how the disincentive which this creates for the proactive release of official information can be resolved.

The Bill also seeks to ensure Oireachtas committees will be provided with the same information by public bodies as would be available on submission of a freedom of information request without having to make such a request. This issue is a major frustration to Oireachtas committees and an understandable and persistent cause of complaint. However, it also highlights the difficulty to which I have just referred, namely, that an official providing official information to an Oireachtas committee is, at least in theory, subject to a legal risk that does not arise where information is released under freedom of information legislation. It will be a priority in the further development of the Minister's proposals to seek to identify a legal mechanism which reflects the appropriate role and responsibilities of the Oireachtas committees and their legitimate interest in receiving official information on a timely basis that would be available to an individual member of the public under freedom of information legislation.

A maximum search and retrieval fee for a freedom of information request of €500 is proposed along with a facility for the electronic payment of such fees. As Deputy Fleming will be aware, there are no fees for freedom of information requests for personal information which, as the Deputy noted, comprise approximately 70% of the total number of freedom of information requests. While a fee of €500 would be a high level for search and retrieval fees charged, it could arise in the case of large or multifaceted requests, namely, where one request has a large number of separate, unrelated parts. The question that would arise if it were necessary to charge such a high level of search and retrieval fees is whether the request was sufficiently targeted and focused in the first instance and should have been rejected as voluminous.

Proposals relating to fees for non-personal freedom of information requests will be included as part of the set of proposals being brought to Government shortly for consideration. In this regard, a particular focus of the work undertaken by the Minister relates to the excessive level of fees for internal review and appeal to the Information Commissioner. These have been a particular cause of concern in facilitating a right of appeal against decisions to withhold records. These issues, including the specific proposal in the Private Members' Bill for a cap on search and retrieval fees, can be examined in the course of the further development of the Government's legislative proposals.

Deputy Fleming proposes that all new bodies established by Government should come under the remit of freedom of information legislation. This is in line with the Government's commitment to apply the legislation to all public bodies, including those established in the future.

The Deputy is correct that it will be necessary to have a clear definition of the term "administrative functions" as it relates to the Freedom of Information Act. Again, this matter can be examined in the context of the drafting of the amending legislation as approved by Government.

I thank Deputy Fleming for introducing this Bill and congratulate him on placing the issue on the agenda of the House. While the Government is not proposing to vote against the Bill, in light of the more extensive proposals being prepared by my colleague, the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, it is better to defer the Deputy's legislation for nine months.

Subject to Government approval, the Minister intends to publish his legislative proposals and refer them for examination, on a pre-legislative scrutiny basis, to the Joint Committee on Finance, Public Expenditure and Reform. The views and recommendations of the joint committee on a number of key issues relating to the restoration and extension of freedom of information provisions, including the operation and future direction of the freedom of information regime, are expected to make an important contribution to the modernisation and updating of that regime.

See this speech in context