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

It is some time since that was done. One is long overdue. As a first step the committee some time ago asked the Information Commissioner to examine all the items in Schedule 3, which deals with enactments excluded from the application of section 41, which deals with the enactments relating to non-disclosure of records. The Information Commissioner presented a detailed and comprehensive report to the committee last year.

The report related to the enactments that are excluded from the scope of the freedom of information regime, as restated in Schedule 3 to this Bill. The excluded statutes are set out on page 79 of the Bill and the excluded statutory instruments are set out on page 81. The Information Commissioner recommended that 52 enactments - my recollection is that approximately 100 pieces of primary legislation and statutory instruments are on the list - should be removed from Schedule 3. In approximately 48 cases, she agreed with the reasoning for their retention on the list. The Department gave its commentary to the Office of the Information Commissioner, which passed it on to us. My amendment, which follows on from the report the committee received from that office some time ago, proposes that "the 52 non-disclosure provisions recommended for exclusion in Schedule 3, where the Information Commissioner disagreed with the views of the relevant Departments, shall be deleted from Schedule 3". I am calling for the deletion of those 52 provisions from Schedule 3.

The Information Commissioner, who was very responsible in her work, agreed that approximately half of the enactments should be left on the list. I do not have Ms O'Reilly's detailed report with me, but my recollection is that her report referred to certain enactments - page 80 of this Bill refers to "No. 42 of 2004 - Health Act 2004 - Section 26", to "No. 22 of 2005 - Veterinary Practice Act 2005 - Section 25" and to "No. 10 of 2005 - Safety, Health and Welfare at Work Act 2005 - Section 73" - that set out the recruitment and grievance procedures etc. applying to doctors, nurses and other professions. Those areas should not be shrouded in a cloak of secrecy for good reasons. The Department did not see fit to legislate in that way, however. Ms O'Reilly disagreed with that. I agree with her assessment, on balance, because I believe there is still a culture of trying to hide information.

I will refer to an example I have encountered recently of the way things work in the public service. I do not know whether it relates directly to the problem I am trying to address. I was shocked by this case, which I am taking up with the line Minister. A person whose reputation was damaged as a result of a public servant carrying out his duties in an unsatisfactory manner took the public body in question - the HSE - to court. It went to the High Court. I will not give the Minister all the details. It is on the public record. I am not providing any confidential information. I have read the High Court's 101-page decision. The High Court judge rightly condemned the performance of the public official. An award of approximately €763,000 was made against the Irish taxpayer because of the way public officials went about their business in following up the allegations that damaged this person's good name, character and career prospects. When this matter went back into the public sector after the High Court had dealt with it, a debriefing of the High Court decision took place within the public service and it was decided that no disciplinary action should be taken against the individual public servant concerned. Maybe he was doing his best, but got it wrong.

As a result of the decision not to take disciplinary action - some of the enactments I have mentioned contain provisions relating to disciplinary action - no record of the public servant's involvement in this case, which cost the State over €750,000 and on foot of which serious statements were made by a judge, was kept on his personal file. I got a phone call last week to inform me that the public servant in question has been approved for promotion by the relevant public body. When I took it up with the chief executive of the State body concerned, I was told that neither he nor the interview board was aware of this. It was not on the person's file because no disciplinary action had been taken. As a consequence, the interview board had no knowledge of the matter. He was offered the job on the basis of his CV and his performance at an interview. No record of what had happened was considered. I am not saying it should have prevented him from getting the job, but those involved should have been made aware of it.

This case gives us an example of the kinds of disciplinary issues that are covered by the enactments listed in Schedule 3. I am thinking specifically of the Health Acts, but other Acts relating to dentists and other medical bodies are also covered by this legislation. These bodies do not want light to shine on what goes on under these Acts. Over the years, the Department has succeeded in getting them included in Schedule 3 so that they are excluded from these freedom of information provisions. I am talking about public bodies governed by statute that are covered by the freedom of information regime, but benefit from having particular sections of particular Acts excluded from freedom of information. Emily O'Reilly has expressed her disagreement in 52 such cases. I suggest that her considered view on this matter is probably a more balanced view as it is in the interests of the public rather than the line Department. I ask the Minister to make arrangements to agree with my amendment, which follows on directly from the recommendation of the Information Commissioner.

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