Gerald Nash (Louth, Labour) | Oireachtas source

I plan to restrict my remarks to some constructive criticism of the current regime and some of the legislative lacunae that hamper the full operation of the freedom of information system. We have learned a considerable amount over the past 24 years since the first legislation was enacted by my colleagues in the Labour Party. The Labour Party is proud to be the party that created Ireland's freedom of information system. Of course, the initial legislation back in 1997 was subsequently amended, to put it diplomatically, buy a Fianna Fáil-led Government, only for it to be, as the Minister has acknowledged, amended again to have that damage undone by one of the Minister's predecessors, Deputy Howlin. I acknowledge that the Minister has recognised Deputy Howlin's commitment to reform in this space, and some of the practical measures he undertook to widen the scope of our freedom of information legislation and, generally speaking, to make it better.

I also acknowledge the Minister's commitment to the notion that we should be reducing FOI requests based on the principle of open government. I hope that is not merely a slogan or a form of empty words trotted out. I take the Minister at his word and I look forward to engaging with the review when it is finally constituted.

The 2014 reforms are important in respect of the events that have fed into the tabling of tonight's motion. Those reforms updated and modernised our FOI laws. They widened the scope of the legislation where new provisions would apply to make electronic devices, relevant material held on phones and non-official email accounts holding relevant information amenable under the Act once the material concerned relates to functions of the office holder.

As the Minister who designed the amended legislation, Deputy Howlin, told The Irish Timesrecently, that Ministers should be expected to embrace not just the letter of the law but the spirit too. The same article went on to state that the report was borne out by a 2015 memorandum from the Department of Public Expenditure and Reform's central policy unit. It states "regardless of the form in which they are held", they are subject to the Freedom of Information Act. All of that said, it would be wise to create more legislative clarity about what precisely constitutes a record under the FOI Act and the National Archives Act. The Minister referred to the National Archives Act in his initial contribution.

We need to provide clearer rules and guidance on the creation of records by relevant bodies and individuals, the retention of such records, and provide for a stronger regime in respect of deletion and security, and when an offence is committed in the event of deletion. In this regard, section 52 of the Act needs our attention. I recognise that the Minister has embarked on a review of the freedom of information system. I hope that section 52 and its provisions are focused on in the review of the operation of the Act.

The Department's code of practice on freedom of information was published in 2015 under section 48 of the Act. Page 21 acknowledges the challenges that public bodies have with record-keeping with the advent of new information technologies. It refers to a lack of clarity and knowledge deficits relating to the management of electronic records. There is a compelling need for more sound management of electronic records and better practices and systems, notwithstanding what the Minister said in his earlier contribution about recent improvements.

The Minister will be aware that the Act is not itself a records management Act. The 2015 code makes recommendations to public bodies about the drawing up of guidelines for their own record management procedures but it is devoid of detailed guidance or a framework around which to build such a system. Some bodies have introduced their own systems but there seems to be a lack of uniformity and clarity in that space. The National Archives Acts, 1986 and 2018, are also drafted with the natural assumption that public bodies will maintain records. It governs their mandatory transfer to public access but like the FOI Act, it does not amount to a records management Act either, since its fundamental purpose is to regulate the transfer of records retained by Departments rather than to regulate what records they should retain.

As the FOI code adverts to, power is given to the Minister under section 19(3) of the 1986 Act to make regulations "for the proper management and preservation of Departmental records in the custody or care of a Department of State". It is interesting to note that no such regulations on records management have been made under section 19 and the result is that as far as departmental records are concerned, including but not confined to electronic communications, official practices regarding record retention and storage still exist in a kind of legislative vacuum. We should all be concerned on that point.

We make all kinds of assumptions about what is available to us under the FOI Act and what should be retained and we think we know what constitutes a record or what does not, but it is something of a minefield and can be confusing for everyone. The FOI code displays a somewhat confused approach. On one hand, the code is addressed to other public bodies, which are statutorily obliged to have regard to its provisions. On the other hand, its provisions regarding records management are, in important respects, addressed to the Department of Public Expenditure and Reform itself, and the code calls for action to be taken under a second body of legislation, the National Archives Acts, to properly regulate records maintenance in Departments and bodies under the aegis of the Act.

Pending the making of regulations under the National Archives Acts, as recommended by the 2015 code from the FOI central policy unit in the Department, there is no precise legislative framework for the management and preservation of departmental records. This is a yawning deficit in the system and it was pointed out six years ago. Two Governments on, this significant matter of public policy relating to open government, good governance and transparency remains unaddressed. Notwithstanding the prominence given to the issue by the FOI central policy unit in 2015 when it inserted its call for action into the published code of practice, I have reviewed this, and the issue does not appear to feature in the incoming Ministers' briefs in either 2016 or 2020. This appears peculiar and suggests a certain resistance at senior level in public administration to tackle this head-on. It did not appear in the briefing material provided to the Minister last year but I hope that this gap will not deter him from acting to deal with this lacuna as he is empowered to do.

Will he commit to addressing what should be a fundamental pillar of any freedom of information regime, with a transparent, clear system for the creation, management and retention of records, underpinned by legislation and regulation, in his reform programme? This would be an important message for him to send about his commitment to real reform.

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