Brendan Howlin (Wexford, Labour) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I welcome the opportunity to introduce the Freedom of Information Bill 2013 to the House. In line with the Programme for Government commitment, the primary purpose of the Bill is threefold - it will restore the substance of the access to information regime put in place in the 1997 Act; it will extend freedom of information, FOI, to all public bodies, including some noteworthy long­standing exclusions, while providing the power to extend freedom of information to non-statutory bodies significantly funded from the Exchequer; and it will enhance our FOI legislation so that it works more effectively and is strongly consistent with the objectives for FOI set out in the initial 1997 legislation.

The Freedom of Information Bill 2013 is of course just one of a broad suite of political and legislative reforms which the Government has advanced. The reform of FOI legislation is central to the Government's goal of rebuilding public trust in the State and to enhance public governance through a significant strengthening of openness, transparency and accountability of government and public administration. It is worth recalling the critical role played by FOI since the enactment of the Freedom of Information Bill in 1997 in improving the quality of public governance. At that time government and public administration was steeped in a culture of secrecy reflecting the legal position under the Official Secrets Act that all official information was a secret and could not be disclosed unless its release was authorised. The introduction of FOI for the first time lifted this veil of secrecy, allowing light to shine on the conduct of government and administrative affairs and for information relating to the governing of the State to be made available to the public.

Over the years it is incontrovertible that FOI has made a major contribution in ensuring that public and political debate is better informed by the availability of official information relating to that issue under FOI.

FOI has underpinned a much more open and transparent approach to public administration overall, has been instrumental in bringing issues of vital public concern into the public domain and has facilitated stronger oversight of the actions of government and the public service. In a number of notable instances FOI has been put to good effect, mainly by the media, to unearth cases of maladministration and-or weak governance. I refer to the work of my former ministerial colleague, Eithne FitzGerald, who piloted the ground-breaking Act in 1997.

The key principle underlying the that Act, reflected in the Long Title of the Bill, is to enable members of the public to obtain access to official information to the greatest possible extent. Six years later in 2003 the then Government introduced substantive restrictions in access to information provided under the legislation, which represented a significant curtailment of the principle that the public has a "right to know". The assessment of the first Information Commissioner at the time, the late Kevin Murphy, who was a former distinguished civil servant, was that the Government had stepped back from the ideal of more open government. While falling short of repealing the 1997 Act, the amendments made in 2003 sought as much as possible to turn the clock back to the pre-FOI era by significantly shifting the balance against disclosure of official information.

The changes made in 2003, in addition to the specific restrictions introduced, sent out a powerful message to the administrative system that the Government wished to restore a significantly more opaque model of public governance where the public's right to know was circumscribed. The starting point for the reforms included in this Bill is essentially to reverse the 2003 changes to ensure Ireland's FOI regime is restored to the top tier of legal frameworks internationally for ensuring access to official information. In addition, through a number of important innovations included in the legislation, the Bill seeks to provide further impetus to the cultural shift towards more open government that the original legislation was intended to support.

The Bill also provides for the extension of the remit of the Information Commissioner to all public bodies, with some exemptions. The Bill introduces a generic definition, which will allow the Act to apply to all public bodies subject to strictly limited exemptions. This follows the approach taken in extending the remit of the Ombudsman, which I brought through the House last year. It replaces the cumbersome and inefficient approach used in the past of bringing bodies under remit by way of order from time to time. The principle is every body is in unless it is specifically excluded. Some 480 bodies come under the FOI Act and this extension will automatically increase that number by 100 bodies. Exemptions are proposed in the public interest for some bodies so as not to affect their ability to perform their core functions or in the interests of the security or financial position of the State. These include An Garda Síochána, the National Treasury Management Agency group, the Central Bank of Ireland, the industrial relations bodies and the Insolvency Service of Ireland. I adopted the policy, in overall terms, of providing for the exemptions from FOI for public bodies in whole or in part in a Schedule to the Bill, other than where the restriction was not expected to change for various public policy reasons. Inclusion of exemptions for specific public bodies in the Schedule is intended to facilitate scope for their removal or amendment if that decision was to be taken following review in the future.

It is important to stress that the original FOI Act clearly envisaged, consistent with international best practice FOI standards, that there would necessarily be constraints on the application of FOI to particular types of public bodies or to certain activities of specific public bodies in the public interest. Current policy is that commercial semi-State bodies with some exceptions are not subject to the FOI Acts. With the exception of Irish Rail, it is proposed that no new commercial State bodies will be brought within remit at this time other than where they provide services on behalf of public bodies. This is on account of the potential for negative commercial effects that could impact adversely on their competitive standing and commercial performance and to safeguard the State's economic and financial interests, a matter we discussed during the pre-legislative stage at committee.

The legislation also provides a power to extend the Act to bodies significantly funded by the Exchequer by way of ministerial order and my officials will consult relevant Departments regarding governing criteria to assess which bodies should be brought under the FOI Acts. In moving forward in this area, it will be a priority to balance the public interest with appropriate proportionality.

Notwithstanding the extensive reform of FOI proposed in this Bill and the wide extension in the scope of FOI to public bodies, the proposed retention of the €15 application fee for non-personal FOI requests has been a source of debate since the Bill was published. We also discussed this matter during the pre-legislative stage and I have given it a great deal of consideration. In assessing this issue, which the House will have the opportunity to debate in detail on Committee Stage, it is important to bear to mind that the application fee is not charged for the majority of FOI requests and, in any event, the application fee is only a small proportion of the estimated average total cost of dealing with a FOI request. The contention, which I have heard repeatedly, that Ireland is almost unique internationally in levying FOI fees is not correct. The practice of charging fees for searching, preparing and communicating the response to FOI requests is widely accepted internationally. However, the position in Ireland is that the charging of search and retrieval fees for FOI requests has in practice become the exception rather than the rule. Only €7.50 was paid in search and retrieval fees on average in 2011 from a total of 3,857 non-personal requests, which works out at considerably less than 25 minutes of search and retrieval time overall.

In addition to removing the restrictions, extending the Act and restructuring it to make it more accessible to the public, I want to introduce a number of important innovations to update, modernise and enhance our FOI legislation. For example, the Bill requires public bodies to prepare and furnish "publication schemes" consistent with international best practice in this area to promote the proactive publication of information outside of FOI. It sets out key statutory principles to guide public bodies in the performance of their functions under the Act including the need to achieve greater openness and to strengthen the accountability of public bodies. The legislation also provides an important provision to confirm that there is a general right of access to records held by public bodies and, in applying exemptions, the right of access should only be set aside where the exemptions clearly support a refusal of access. In the interests of minimising costs to requesters and to avoid administrative duplication, the Bill provides for a specific linkage to other access regimes such as the EU-based regulations on the reuse of public sector information and on access to information on the environment and there is also a provision which sets out the responsibilities of public bodies in dealing with records relating to data held electronically.

The changes I am introducing provide the quality of the legislation but its effectiveness will depend on how it is implemented in practice. Consequently in May last, I initiated a short, focused and targeted operational review of FOI with the objective of establishing a code of best FOI practice for public bodies. This emerged from the many advices we received from FOI Act users where they felt various public bodies treated requests differently. Some were open while others were less open. It is important to establish a common code of practice. The review was carried out by an external group comprising academics, journalists and other users and a public bodies review group consisting of FOI experts in the public service. Following Government approval, I proposes to publish the draft code shortly for public consultation, before finalising the code prior to or on enactment of the legislation. Implementation of the code will enhance the overall efficiency of Ireland's FOI regime and secure a sustained improvement in the performance by public bodies of their responsibilities under the FOI Acts.

I thank the Joint Committee on Finance, Public Expenditure and Reform for its scrutiny of the Bill. Deputy Sean Fleming who is a member of the committee is present. Its recommendations have informed both the Bill and the code of practice as it develops.

I will now briefly outline the main provisions of the Bill. Part 1 contains sections 1 to 5, inclusive, and deals with preliminary and general matters, including the Short Title, definitions used, commencement provisions and the power of the Minister to make regulations.

Part 2 which contains sections 6 and 7 is entitled "FOI bodies" - a new term we have coined to encompass both what we traditionally understand as public bodies and also to include significantly funded bodies prescribed under the Act. Section 6 enables FOI to apply to all public bodies, unless specifically exempt, while section 7 enables bodies funded from the Exchequer to be brought within the remit of the Act, either in whole or in part.

Part 3 contains sections 8 to 27, inclusive, relating to central elements of the legal framework encompassing general rights in relation to records and decisions, to rights of access under FOI to reviews of decisions and ultimately appeals to the High Court. Section 8 deals with the publication of information on FOI bodies. Sections 9 and 10 provide for the amendment of records relating to personal information and the right of a person to information on an act of an FOI body affecting that person.

Section 11 sets out details on rights of access to records from FOI bodies. It contains some amendments which I have mentioned, including the provision of key principles to guide FOI bodies in the performance of their functions under the new legislation. It also repeals a provision in the 2003 Act which limited the potential for access to records relating to services provided under a contract for services to a public body by a commercial State body or some private bodies.

Section 12 deals with requests for access to records and contains a new subsection enabling requesters to be advised of other regimes for access to official information, thus potentially reducing costs for the requester. Section 13 deals with decisions on requests and notification of such decisions. Section 14 relates to the extension of time for consideration of FOI requests.

Section 15 provides for a refusal of an FOI request on administrative grounds, while section 16 permits deferral of access to a narrow range of records. Section 17 covers the manner of access to records. It requires FOI bodies to take reasonable steps to search for and extract electronic data from databases. It also clarifies that where records are available in electronic form, they may be released in electronic and searchable format. Section 18 relates to access of parts of records. Section 19 provides that failure by an FOI body to reply to a request within the timeframe specified will be deemed to be a refusal.

Section 20 provides for delegation of functions relating to FOI to enable more effective operation of the FOI system. Section 21 provides for internal reviews against an initial decision by an FOI body, while section 22 provides for reviews by the Information Commissioner of decisions of an FOI body. A number of technical changes are being proposed to the section to improve the functioning of the Act. Section 23 allows the Information Commissioner to require an FOI body to provide more detailed reasons for a refusal to grant a request.

Section 24 provides for appeals to the High Court. Some amendments have been made, including broadening the grounds for an appeal. Sections 25 and 26 set out precautions against the disclosure of exempt information and a stay on certain decisions which may be subject to appeal.

Section 27 relates to fees. It was agreed by the Government that there should be a reduction from €75 to €30 in the fee for internal review and from €150 to €75 in the fee for an appeal to the Information Commissioner. These changes will be effected by way of order following the enactment of the Bill. Any legislative change needed for a reform of the search and retrieval fees regime which does not operate properly or on a consistent basis across FOI bodies will be introduced on Committee Stage.

Part 4 contains sections 28 to 41, inclusive, which provide for a series of exemptions to protect sensitive information. In section 28 the protection of records relating to meetings of the Government is restored, reversing the restrictions made in 2003. Section 29 relates to deliberations of FOI bodies, an exemption which had been strengthened in the 2003 Act. Again, this section has been restored to what it was in the original 1997 Act.

Sections 30 to 32, inclusive, largely re-enact the current sections 21 to 23, inclusive. Section 33 relates to security, defence and international relations. In overall terms, the absolute exemption for records relating to the tactics, strategy or operations of the Defence Forces and certain diplomatic communications is removed and made subject to a harm test. The mandatory exemption remains only for highly sensitive confidential communications relating to, for example, negotiations between the State and international organisations and for information on intelligence in respect of the security or defence of the State. Section 34 outlines the procedures in relation to the issue of ministerial certificates declaring a record to be an exempt record by reference to sections 32 and 33.

Sections 35 to 37, inclusive, retain the original exemptions in the 1997 Act for confidential information, commercially sensitive information and personal information held by an FOI body against third party access. Section 38 outlines consultation procedures to be followed if a head proposes to release, in the public interest, information referred to in sections 35, 36 or 37.

Section 39 maintains the original exemption for information on research and natural resources subject to certain conditions. Section 40 protects information where its disclosure could reasonably be expected to have serious adverse effects on the financial interests of the State or the ability of the Government to manage the economy. Section 41 upholds the operation of specific secrecy and non-disclosure provisions in other enactments, unless such provisions are listed in Schedule 3, in which case they are subordinate to FOI. Non-disclosure provisions in other statutes not included in Schedule 3 are being reviewed by the Oireachtas Joint Committee on Finance, Public Expenditure and Reform.

Part 5 is a new Part containing section 42. Section 42 includes a relatively limited number of public bodies where under the original Act the application of FOI was restricted to administrative records. There are some additions to this section, including certain highly sensitive crime, security and intelligence activities carried out by, for example, An Garda Síochána, which are excluded from the scope of FOI. The section also excludes records held by the Central Bank of Ireland which are subject to professional secrecy obligations under EU law which cannot be overridden by national law.

Part 6 contains sections 43 to 47, inclusive, relating to the Information Commissioner in terms of his or her powers and reviews. Some new provisions are included in section 45 such as to allow the Information Commissioner to apply for a court order to oblige an FOI body to comply with a binding decision of the Information Commissioner where the FOI body has failed to do so.

Part 7 contains sections 48 to 55, inclusive. Section 48 is a new section providing the Minister with the power to draw up and publish a code of practice and guidelines to assist FOI bodies in the implementation of the Act. Public bodies shall have regard to the code and guidelines in the performance of their functions. This is an important new innovation.

Section 50 is a new section which amends the Central Bank Act 1942 to allow the bank to furnish information to the Information Commissioner in the performance of his or her functions. Section 52 is a new section which provides that it will be an offence under the Act to wilfully and without lawful excuse either destroy or alter a record that is the subject of an FOI request and sets a class B fine on summary conviction.

Section 54 is a saver provision. Regulations made under the 1997 Act relating to the scope of the application of FOI legislation to particular public bodies, other than those listed in Schedule 5, will cease to be in operation on the commencement of this Bill.

Section 55 is another new section providing for transitional arrangements for actions commenced but not completed under the existing legislation. For example, if legal proceedings are pending to which the Information Commissioner is a party, the proceedings may continue as if the 1997 Act had not been repealed.

Part 1 of Schedule 1 includes details of the bodies included in part under FOI, while Part 2 includes a list of bodies exempt from FOI in full.

Schedules 2 and 3 re-enact current Schedules but have been updated. Schedule 4 details the repeals of both primary and secondary legislation effected under the Bill, while Schedule 5 lists the statutory instruments made under the 1997 Act that are to continue in force following enactment of this legislation, notwithstanding the repeal of the 1997 Act.

I trust Deputies will support the Bill. From our pre-legislative scrutiny, I know there is a positive welcome for the measures taken. There are issues we will discuss, both on Second Stage and, more formally and in more detail, on Committee Stage to help to strengthen further the governance of institutions and significantly expand the role and remit of the Information Commissioner.

I apologise as I must leave. I did not actually expect to be here to introduce the Bill. I have another commitment that I must honour. I will read with care all of the contributions made by Deputies.

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