Seán Fleming (Laois-Offaly, Fianna Fail) | Oireachtas source

We will come to that issue and debate it. I listened carefully to what the Minister said and I am responding to it. It is clear that nobody told the public that freedom of information was abolished and that nobody told the Information Commissioner. The Minister considers he has to restore freedom of information. In that context, let me refer to the annual report for 2011 of the Information Commissioner. I do not know whether the report for 2012 has been published yet. It is stated on page 3 of the 2011 report, "Some 16,517 requests were made to public bodies under the FOI Act in 2011". Obviously, the 16,517 people were not aware that freedom of information had been abolished and that the Minister considered there was a need to restore it. I challenge the spin in the Minister's statement that he is restoring freedom of information. Of the requests made, 12,581 were for personal information, while 3,857 were for non-personal information. A small number of requests, 79, were for mixed information. It is clear that two thirds of all requests under freedom of information legislation were for personal information. There has never been a charge for personal information, either before or since the amendments in 2003 and the Minister does not propose to introduce any charge for obtaining personal information. Clearly, there was never a change in any respect in regard to access to freedom of information in the overwhelming majority of cases. We will deal with some of the changes the Minister referred to in particular. Some 58% of the requests to which I refer were granted in full, 20% were granted in part and 11% were refused. Approximately 11% were withdrawn or otherwise dealt with. Clearly, there has been a very healthy use of freedom of information legislation in recent years and since its inception. I give credit to former Minister Eithne Fitzgerald for what she did many years ago, long before I became a Member. The legislation was and is good. I support its principle but believe some of the changes introduced in 2003 have been exaggerated.

Having referred to the annual report, I take the opportunity to congratulate the Information Commissioner, Ms Emily O'Reilly, on her appointment as European Ombudsman. As a consequence of her appointment, she will be retiring as Information Commissioner and Ombudsman in Ireland. I wish to talk about the process of filling the vacancy which is specifically omitted from the legislation. The process of appointing an Information Commissioner should be dealt with in the legislation. There is an entire Schedule on the role and responsibilities of the commissioner in the legislation. Despite this, there is no specific provision on the appointment. If the Government is serious about political reform and making the Dáil relevant, an Oireachtas committee should interview the prospective candidate. It is a matter for the Oireachtas to decide which committee. The prospective appointee should be endorsed, or otherwise, by an Oireachtas committee and, if endorsed, appointed in due course by the Government and the President, as the case may be. That would be a very important change. If the Government is serious in saying it does not want to withhold all power from Parliament, it should carry out this very important initiative. Parliament must have a real role in the appointment of a new Information Commissioner.

I touched on the question of fees for personal information. It is important to note that the Minister is continuing to allow in the new legislation the charging of a fee for an application for information. It is €15 in normal cases and €10, I believe, if one has a medical card. The Minister also retains the review and appeals fees for non-personal requests but at a lower level. I accept that there was a lot of criticism of the 2003 Act. The main criticism concerned the introduction of the fee of €15 for gaining access to non-personal information. There was never a charge introduced for gaining access to personal information. The Minister is retaining this arrangement. The main thing he could do at this stage, if he is sincere about “restoring” freedom of information – I do not believe his view on restoration is correct based on the 15,000 people who make requests each year – is abolish the fee entirely. I will be proposing amendments to this effect on Committee Stage.

During our discussion at a meeting of the Oireachtas Joint Committee on Finance, Public Expenditure and Reform many members referred to the cost to organisations of processing the fee. In many cases, the cost of setting up a computerised system for processing fees pertaining to freedom of information requests is far greater than the income earned from the fees.

Not only is it not right to have a fee in principle, it is also an inefficient method of raising funds. I ask the Minister to take this into account when we are considering the matter on Committee Stage.

Section 27, the heading for which is "Fees", begins thus: "Subject to this section, a fee of such amount as may be appropriate having regard to this section shall be charged by the FOI body concerned and paid by the requester concerned to the body in respect of the grant of an FOI request". The Minister has put it in black and white that he is retaining the fees and I ask him to withdraw that provision on Committee Stage. It is identical to what is contained in the previous legislation and he has done nothing to make a change. If he were to do so, I would compliment him on improving the legislation. As I said, reduced fees for those with medical cards is another administrative issue and given that the difference is only €5, it would actually be easier to get rid of the charge altogether.

I keep emphasising that there never was and I hope the Minister has no intention of introducing a fee for requests for personal information. That has always been the case and long may it continue. The majority of cases never attracted a fee under freedom of information legislation. Having said that, I accept that there was a lot of negative publicity about the legislation to the extent that the number of people making requests for personal information reduced for a couple of years. Such was the controversy over the introduction of fees for non-personal information that people believed the fees also applied to requests for personal information. Many held back from making a request when they should not have done so because there was actually no fee chargeable.

I will move on to the issue of search and retrieval fees, to which I specifically referred in the legislation I put forward in the House last year when I proposed that a cap be applied. There are two comments in the Minister's opening statement which link with this issue and I ask him to consider it further. When I was preparing the draft legislation last year, I submitted a parliamentary question to every Minister about freedom of information search and retrieval fees in their line Departments and the information I received was quite extraordinary. I will elaborate on the replies I received for the benefit of those listening to this debate who would not otherwise have this information.

I asked what was the highest fee charged because I was interested to know how excessive the fees were. I posed that question because two budgets ago the Minister for Finance, Deputy Michael Noonan, introduced one taxation measure about which I was very curious, in terms of its origins. I submitted a freedom of information request to the Department of Finance, seeking the documentation, information and representations that had been made on the particular change. The reply I received from the freedom of information officer in the Minister's office was that the search and retrieval fees would be €1,257. That stopped me in my tracks straightaway and I never proceeded with my request. I was shocked that what I had thought was a simple request could attract such a fee. It was a scandal. I did not proceed and believed it was unreal. That is one of the reasons I followed up on the search and retrieval fees issue with each Department.

In his parliamentary reply to me last summer the Minister for Finance said the highest search and retrieval fee charged in his Department that year was €83. Obviously, people like me who submitted requests for information and were given figures of €1,200 or more did not proceed with those requests. They were effectively withdrawn. The Department of Transport, Tourism and Sport replied that the highest search and retrieval fee it charged was €41.40. The highest fee in the case of the Department of Health was €1,676, with the average fee amounting to €261. At that stage the Department of Children and Youth Affairs had received no FOI requests. The highest fee at the Department of Agriculture, Food and Marine was €301, while the figure for the Department of Defence was €523. The Department of Justice and Equality had charged somebody who obviously had paid the fee because it was listed €15,664 in search and retrieval fees in a particular case. However, the Department did point out that the average fee was only €130, but there was one particularly high fee charged that year. The highest fee in the Department of the Environment, Community and Local Government was €3,142, while the highest fee in the Department of Communications, Energy and Natural Resources was €1,487. The highest fee in the the Department of Arts, Culture and the Gaeltacht was €15.70, while the highest fee in the Department of Jobs, Enterprise and Innovation was a mere €8.30. The highest search and retrieval fee charged by the Department of Public Expenditure and Reform was €4.81, while the highest fee charged by the Department of Education and Skills was €1,046. I have already mentioned that the Department of Finance indicated that the highest fee it had charged was €83. The Department of Foreign Affairs and Trade indicated that the highest search and retrieval fee for that year was €7,961. The star Department as far as I am concerned is the Department of Social Protection. It is the absolute star Department and a model for every other Department. It did not impose search and retrieval fees on anybody seeking information during the course of the year.

I referred to the Ombudsman's report for 2011. That report indicated that the Department of Social Protection had received well over 1,000 freedom of information requests. Obviously, over three quarters or 80% of these requests were for personal information, but there had to be 100 or 200 for non-personal information. We all know from dealing with the Department by way of parliamentary questions how quick it is to access the information requested. It can furnish responses to Deputies in no time. It has everyone's file on computer, no matter which part of the country one is from. It seems to be a model in how to handle information. Obviously, search and retrieval fees were not a big issue, even when the Department was asked to provide non-personal information. A policy decision was made not to charge. That is the model we should be considering and if one Department can do it, there is no reason others cannot. The Minister referred to inconsistencies on this issue and I have just highlighted some of them. All of the information I have imparted is already on the Dáil record by way of replies to parliamentary questions that I asked in February 2012.

I proposed a maximum search and retrieval fee of €500. In that context, I am very intrigued by the information supplied by the Minister. He said that, on average, €7.50 was paid in search and retrieval fees in 2011, for a total of 3,857 requests for non-personal information. We are talking about the average fee. Obviously, the Department of Social Protection is at one end of the spectrum, while the Department of Justice and Equality would be at the other. The average fee works out at €7.50 and I am very glad that the Minister for Public Expenditure and Reform provided that information. I ask him to reconsider the point he made later in his contribution when he said that any legislative change needed for a reform of the search and retrieval fee regime which did not operate properly or in a consistent way across FOI bodies would be introduced on Committee Stage. I put it to him that the average fee is €7.50. In that context, I ask him to do the decent thing and not waste Oireachtas time in passing legislation to regulate something that yields €7.50. I ask him not to belittle the national Parliament by spending time discussing what is a trivial amount of money. If that is the average fee - the Minister supplied the figures - and that is all that is involved, it is not worth the administrative hassle to try to collect it. Not only should he move away from charging €15 for the initial application, or €10 for a person with a medical card, he should also move away from charging a search and retrieval fee. He has said the average fee is €7.50 which is so small that he should forget about it. He should not waste Oireachtas time on this issue. I ask him not to write memos, draw up codes of practice or devise regulations aimed at consistency and on how to charge when the amount involved is only €7.50. It is a trivial amount and it is often said the law should not concern itself with trivial matters. The sum of €7.50 is not one we should be discussing in the national Parliament. There is only one way to deal with this issue and that is to abolish the charge entirely. I am very pleased that the Minister gave the information which I did not have previously.

The question of search and retrieval fees is not really about money but about the rights of citizens to access information. I know there are public servants who will say that if the fee is abolished, some citizens will abuse the system and because they believe two or three citizens will abuse the system by asking for reams of information, they will try to put in place an enormous bureaucratic regime in every Department for search and retrieval fees which will only yield, on average, €7.50. If officials use the legislation correctly, they can deal with vexatious, trivial and repeat requests. There are several ways for them do deal with such issues, instead of running to the Minister to ask him to draw up a new bureaucratic regime. I hope common sense will prevail on this issue. I also hope people will find the information I imparted useful because it complements what the Minister said about different approaches being taken across the various Departments.

There are serious shortcomings in this legislation, particularly around those bodies exempt from freedom of information legislation. My suggestions will be amendments on Committee Stage which will not just be one sitting. The most obvious omission from the Bill is the Minister’s decision not to include Irish Water in the provisions of freedom of information legislation. The exemption of this new commercial semi-State organisation which will have an absolute monopoly of the provision of water for households and premises is astonishing. The Minister has also stated he is not extending freedom of information to any of the existing commercial State bodies, with the exception of Irish Rail, as it is the only rail provider in the State and no competition issues arise. I understand the logic of not extending freedom of information to Aer Lingus, the ESB and Bus Éireann because it could put them at a commercial disadvantage with their competitors. However, Irish Water is the same as Irish Rail. Why can it not come under the legislation? The issue was discussed with the Minister earlier in the summer at the finance committee and he initially stated all new public bodies would come within the remit of the legislation. However, when he was pressed on the inclusion of Irish Water, he hummed and hawed. As it has a monopoly in water provision, I do not see how freedom of information requests could reveal commercially sensitive information.

Schedule 1, Part 2 lists the other agencies exempt from the legislation. While I do not have a problem with some of them, there are others that should not be exempt. They include EirGrid which is not in competition with any other body as it manages the electricity network. I am astonished that the Minister would exclude the Food Safety Promotion Board as the public wants to know what the board is doing. Tourism Ireland is also excluded. While I accept that the Minister might claim it is in competition with other tourism bodies outside Ireland, its administrative functions, at least, should be included within the remit of the Bill. Which companies is Waterways Ireland in competition with, as it is also excluded?

It is claimed that this legislation has been extended to cover people working on behalf of public bodies on an agency basis. Will the receivers and administrators working for the National Asset Management Agency, NAMA, be included? The Oireachtas finance committee recommended that the Office of the President be brought under the legislation. Bus Éireann provides school transport services for the Department of Education and Skills on a contract agency basis. Will it come under the freedom of information legislation as it is not a commercial matter?

The Information Commissioner highlighted in section 41 that there were 230 secrecy provisions embedded in every Department. These should all be consolidated into one and not sneaked in by different Ministers here and there without the knowledge of the Information Commissioner who has pointed out that they are included in Schedule 3 which now comes under the heading of freedom of information. Some Departments will be happy to let some items come in under it. However, there are still 100 legislative provisions not included in Schedule 3. The outgoing Ombudsman, Emily O’Reilly, made it clear at a recent finance committee meeting that she agreed with the logic in continuing to exclude 48 of these but not the other 52. For example, the Department of Health has excluded the Dentists Act 1985 and the Nurses Act 1985 dealing with information on fitness to practise inquiries. The public is entitled to know about this. The Department has also excluded corporate plans from the Health Act 2004, which is a mistake. I know the Minister would change his mind on this issue if he were to consider it seriously.

I will be introducing amendments to have legal timescales for the release of information and appeals, make provision for electronic requests, electronic payments and proper training for all staff, particularly in publicly funded organisations such as non-governmental organisations and charities who are not public servants as such. I also want to see the establishment of a database of all released information in order that it can be accessed without having to make another request.

All statutory instruments provided for in the Bill should be brought back to the Oireachtas to require a positive vote rather than automatic enactment. Will the Minister produce a list of bodies contemplated under section 11 where public services are contracted out to other bodies and agencies?

In 2003 the former finance Minister, Mr. McCreevy, introduced restrictions on access to Government papers, Cabinet records, as well as records on security matters, international relations, defence issues, Northern Ireland issues and the deliberative process. How many requests have been covered by this provision since 2003? Since they were introduced, there have been 150,000 freedom of information requests. How many came within these restrictions? I suspect the effect of the restrictions has been grossly over-exaggerated.

The issue of personal information under section 37 needs to be examined. I know of families who cannot gain access to information on a deceased relative because of the legislation. I have also dealt with cases in which people filled in an application for a disability pension which was then signed by the doctor. When they sought a copy of the file, departmental officials told them that the form signed by the doctor could not be released. This is a provision that needs to be corrected.

There are new restrictions on the release of financial information on NAMA. I am shocked that the Minister has introduced a provision excluding records “advising on or managing public infrastructure projects, including public private partnership arrangements”. It is impossible even for the Committee of Public Accounts to obtain information on these arrangements.

The Minister is playing to the big boys who want to be involved in PPPs and bringing in new restrictions on information on PPPs. Last year he announced €800 million in PPPs for health centres, but it has not yet happened. We want to know what is happening with some of these health centres where Ministers are involved. The provision being introduced to prevent people from getting information on PPPs is a scandal and if the Minister thinks about it, he will have to reverse it. We want to see that happen. I want the code of practice, to which the Minister has said staff shall have regard, to be mandatory.

On page 73 there is an item which I am shocked the Minister has included in the legislation. I have said this several times. Regarding the Labour Relations Commission and the Labour Court, as part of the Haddington Road agreement, the Minister's Department issued several letters on public sector management to the different sections and they are all hidden from the public, even though it pays for this.

My most serious concern in the legislation concerns the new provision regarding staff at the National Treasury Management Agency, NTMA, which covers the National Asset Management Agency, NAMA, the National Pensions Reserve Fund, NPRF, and the National Development Finance Agency, NDFA. It is a shock that the Minister is doing this. The big boys, the money people, have got the Minister. Regarding these organisations, he is excluding from FOI information "concerning the terms and conditions on which a person holds a position as a member of staff of the agency, other than when that information is contained in records in summary or collective form such that individuals cannot be identified from the record". He is providing for the highest paid public servants to have a new exemption under freedom of information legislation in order that their terms and conditions cannot be made public. It is a disgrace and the Minister will have to reverse it. The financial sector has got to him to protect the people concerned. He must withdraw this new secrecy provision for those involved in NAMA, the NPRF and the NTMA. I will include all of these items as amendments on Committee Stage.

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