Josepha Madigan (Dublin Rathdown, Fine Gael) | Oireachtas source

Thank you, a Leas-Cheann Comhairle.

I thank Deputy Tóibín. We discussed this considerably on 7 December on Committee Stage. However, I will make some opening comments in regard to it.

The role of the Information Commissioner is defined under the Freedom of Information Act 2014. Amendments Nos. 1 and 3, if carried, would give a co-decision role to the Information Commissioner before a Government Minister could agree to transfer records to the National Archives after 20 years. My Department has been in contact with the Office of the Information Commissioner and, as the Deputy knows, he has informed us that he would be reluctant to take on what appears to be a decision making role that may not fit with his statutory role as Information Commissioner. The Department of Public Expenditure and Reform also supports that view.

I am aware the Deputy is concerned there may be political influence over the early release of documents. All decisions on records to be released under this proposed legislation will be taken in consultation with the Director of the National Archives, John McDonagh, whose functions are enshrined in legislation in section 4(1) of the National Archives Act 1986. In a sense, he is a neutral voice separate to the political process. The input of the director as provided for in section 4 of this Bill allows for the balance the Deputy seeks. I therefore cannot accept amendments Nos. 1 and 3.

In regard to amendment No. 2, and again we discussed this on Committee Stage, the Deputy is requesting the substitution of the word "may" with "shall". The procedure proposed in the National Archives (Amendment) Act is cumulative. I have to say to the Deputy that I consulted with the Attorney General subsequent to our committee meeting on 7 December regarding any proposals to substitute the word "may" with "shall" and he has said that it is cumulative and that before I make any order, I must first consult with the director and obtain the consent of the Taoiseach, the Minister for Public Expenditure and Reform and other relevant members of Government pursuant to paragraph (a). Second, I also have to be satisfied as to the matters referred to in paragraph (b). To clarify for the House, paragraph (b) states:

The Minister may make an order under this subsection where he or she is satisfied that—(i) (I) the records concerned are of significant historical or public interest such as to warrant their transfer to the National Archives, or

(II) the transfer of the records concerned to the National Archives will facilitate the balanced and fair reporting of matters of common interest to the State and other jurisdictions,

and

(ii) the arrangements for such transfer are adequate.

If the word "shall" is placed in paragraph (b) that could lead to confusion as to whether I, as Minister, must make an order if I am satisfied as to the matters referred to at paragraph (b), notwithstanding the conditions provided for in the previous paragraph, that is, consulting with the Director of the National Archives and obtaining the consent of the Taoiseach, the Minister for Public Expenditure and Reform and other relevant members of Government. I cannot make such an order, therefore, unless I have consulted with the director, received the consent of the relevant parties and I am satisfied as to the matters referred to in paragraph (b). I therefore cannot accept the amendment.

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