Seán Kenny (Dublin North East, Labour) | Oireachtas source

The purpose of this Bill is to provide for the commitments in regard to freedom of information contained in the programme for Government by removing the main substantive restrictions in access to official information introduced in 2003. Freedom of information will be extended to all public bodies and will provide a framework for the extension of FOI to non-public bodies in receipt of significant funding from the Exchequer. The legislation also provides an opportunity for a necessary consolidation that modernises and updates the legislation.

The original Freedom of Information Act was passed in 1997, when Labour was last in government. Amendments made in 2003 by Fianna Fáil and the Progressive Democrats involving six sections of the 1997 Act have been characterised as representing a significant curtailment of the principle of the right to access to records provided for in the original freedom of information legislation. I am very pleased that this Bill essentially reverses those restrictions, which I always believed were introduced for dubious reasons by Fianna Fáil and the PDs. These restrictions relate mainly to the treatment of Government records - section 28 - restrictions in regard to records under the deliberative process exemption - section 29 - and exemptions for categories of records relating to security, defence, international relations and Northern Ireland.

Certain exemptions will be provided for some bodies so as not to affect the ability of these bodies to perform their core functions, or in the interests of the security or financial position of the State. The Bill exempts most commercial State bodies in full from FOI. Other bodies are provided with exemptions in part, including An Garda Síochána, the National Treasury Management Agency, the Central Bank of Ireland, various industrial relations bodies, the Insolvency Service of Ireland and the various ombudsmen. New public bodies will automatically be subject to the terms of the FOI legislation as they are established, but provision is made for the Minister to make an order specifically to exclude them in whole or in part, if required.

As I stated earlier, the legislation will replace the Freedom of Information Acts 1997 and 2003, which are being repealed under this Bill. The structure of the Bill is also being revised to seek to improve the accessibility and comprehensiveness of the legislation for the benefit of FOI bodies and citizens alike. Section 8 provides that each FOI body will publish a publication scheme to replace the section 15 and 16 manuals required under the 1997 Act. Given technological and ICT developments in the 15 years since FOI was first introduced, the migration of such information to websites and international best practice, these manuals were no longer considered fit for purpose.

In keeping with this aspect of the legislation, I would like to take the opportunity to express concern at the wording of section 17(4)(b) of the legislation. This could be seen as being rather ambiguously worded and should, in my view, be amended. The paragraph reads as follows: "...the FOI body shall take reasonable steps to search for and extract the records to which the request relates, having due regard to the steps that would be considered reasonable if the records were held in paper format". While I know it would not be the intention of the Minister or the Department, I would have a concern that this wording might be used as a basis for minimising the execution of FOl requests where digital information is concerned. I would be concerned the wording may infer that a "reasonable" step would be deemed as such only if everything was printed out on paper and not reasonable if data was held on a database or other digital storage. A more explicit wording is required to take databases and other forms of digitally stored data fully into account in terms of providing information requested under FOl legislation.

I am aware from reports that individuals at the Office of the Information Commissioner have contacted the Department of Public Expenditure and Reform and suggested to them there may be concerns in this regard, and I am aware the Department has been considering the matter. I would be interested to know if there have been any developments on this aspect of the legislation.

That said, I am happy to see this legislation come forward. We need greater transparency in our public bodies than we have at present and I feel this legislation provides an improvement over the current situation. I was very unhappy to see the legislation which I helped to pass as a Member of this House between 1992 and 1997 undermined by Fianna Fáil as soon as it came back to power. I find these actions to be a damning indictment of the political culture of the Bertie Ahern-led Fianna Fáil Governments. I hope that such actions do not happen again and that this present legislation, if it is ever amended, is amended to provide even greater transparency in public life, not less.

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