Ossian Smyth (Dún Laoghaire, Green Party) | Oireachtas source

I move amendment No. 1:

To delete all words after "That" and substitute the following: "Dáil Éireann:

— recognises that the Department of Public Expenditure and Reform is undertaking a comprehensive review of the Freedom of Information Act 2014 to strengthen and modernise the legislation; and

— resolves that the Freedom of Information (Amendment) Bill 2021 be deemed to be read a second time this day nine months, to allow for the review to be completed and for a proposal for draft legislation to take account of recommendations arising from the review to be brought forward."

I thank Deputies Clarke and Farrell for bringing the Bill forward. They are correct that it is important. This is a good opportunity to discuss it. While I and the Minister, Deputy Michael McGrath, commend the interest the Deputies have taken in the FOI system and will welcome any policy suggestions or proposals in the context of the ongoing review, I respectfully take the view that the Bill has been overtaken by the broader review of the strengths and challenges in the FOI system that is being undertaken by the Department of Public Expenditure and Reform.

It is of critical importance that policy development is grounded in a firm evidential base and I will, therefore, take the opportunity to set out some background facts on the operation of the FOI system. Tens of thousands of requests are made annually under the legislation to more than 600 freedom of information bodies. From the introduction of the revised legislation in 2014 to 2019, the number of requests annually almost doubled to approximately 40,000 requests. The level of demand increased by 179% between 2009 and 2019. Even against a backdrop of Covid-related disruption, 32,652 requests were processed in 2020 and it is expected the previous upward trend will resume when figures are collated for 2021.

In terms of outcomes, the vast majority of FOI requests decided on are granted in full or in part, accounting for approximately four of every five requests in most years. For example, the figure was 81% in 2020. The majority of requests annually are for personal information, with 57% of requests being on that basis in 2020, for example. In cases where requesters are unhappy with the decision they have received, extensive review mechanisms are available. Internal reviews, where a more senior staff member in a body reconsiders the request, are sought for approximately 3% of requests in most years. In 2020, for example, that figure was 3.3%. An independent review by the Information Commissioner is sought in approximately 1% of cases annually. In 2020, it was 1.3% of cases. The role of the commissioner is to determine whether the FOI decision made by a public body was justified. In a review by the commissioner, the onus is on the public body to demonstrate to the satisfaction of the commissioner that the decision was justified. The staff of the commissioner draw on experience and expertise gathered through the years to thoroughly test the arguments put forward by public bodies. The statistics show the commissioner tends to uphold the decision of the public body in the majority of decided cases following a review. For example, this was the outcome in 70% of decided cases in 2020. It is clear the system as it is currently structured is delivering on its own terms, with ever-greater amounts of information being released year on year.

Of course, that is not to suggest there are not very legitimate questions as to whether the request-based FOI model that was designed based on the assumption of paper-based administration remains fit for purpose in today's world and workplace. There is widespread agreement in this House, in public administration and among the public that it should be easier to access a broader range of information without the need for a formal FOI request, whether through greater proactive publication or reducing the bureaucracy involved in releasing information.

It was in the interest of strengthening and modernising the 2014 FOI legislation and considering issues such as these that my colleague, the Minister, launched a comprehensive a collaborative review of the FOI legislation. I will provide the Members with more information on progress in the review shortly and in my closing address. I sincerely thank the Deputies for taking a constructive approach to this and for offering to sit down with my officials and I and with the Minister and I am very happy to facilitate that. The Deputies can work with me on it any time.

However, I will make some criticisms of the legislation they have drafted and I hope they consider them in the spirit in which they are meant. They are not meant to be offensive or an insult. There are significant technical issues with the proposals, as drafted. Advice has been received from the Office of the Attorney General and it appears that a number of the proposals would tend to either produce the opposite of the intended effect or no effect at all. In addition, each proposal would require significant further work from a policy perspective.

Section 2 proposes to insert an additional category of pension payments to former taoisigh, Ministers and Presidents paid out of current expenditure to the definition of personal information at section 2 of the Freedom of Information Act 2014. In practice, this would copper-fasten the fact that information of this type is treated as personal information for the purposes of the Act which by default is exempt from release under section 37 of the Act. By way of background, it appears that for a time information of this nature may have been published on an administrative basis. I understand that this practice was ultimately discontinued based on legal advice as to compliance with data protection and privacy law. It was only at this point that FOI requests then began to be made for information of this nature.

The question came before the Office of the Information Commissioner, OIC, for the first time relatively recently and in its decision, the office found that the personalised amount received by an individual is personal information, while the aggregate information or remuneration scales can be released under FOI. This approach is in line with long-established principles for dealing with salaries and pensions of public servants, dating back to the earliest days of FOI in Ireland. The OIC explicitly made this point in the decision and noted that the introduction of GDPR had no bearing on this outcome.

Notwithstanding the OIC's finding on individualised information, I understand that aggregated information to a significant level of detail, as well as scales and methods of calculation, remain available on request. It appears that what is at issue in this proposed amendment is an expansion of FOI and a change to long-established principles. In line with privacy and data protection law, including previous decisions of the European courts, any such expansion would have to be based on a clear policy objective that makes an individualised treatment necessary and proportionate in the circumstances.

Section 3 proposes to amend section 6 of the principal Act in order that freedom of information comes into effect from the date of a body's establishment. At present, FOI kicks in by default six months after an entity is first established. This is a practical approach. As usual, new bodies will need time to hire staff and set up administrative systems. However, where there are particular circumstances to warrant it, the legislation also allows for an earlier date to be specified. Section 79 of the Land Development Agency Act 2021 did just that. In that case, FOI applied from day one and the reach of FOI for the new entity included records created prior to its establishment. This was appropriate, given that the new entity effectively took over from an existing body and had the means to process requests from the outset. However, as a baseline, it would seem in general that the current position is more appropriate.

Section 4 proposes to amend section 7 of the principle Act and oblige the Minister and the Information Commissioner to carry out an annual review of entities prescribed as FOI bodies under that section. The technical issue is that no entities have been prescribed as FOI bodies to date under section 7 and, therefore, the amendment, as it stands, would have no effect. Furthermore, a wholesale annual review of inclusions or part-inclusions would appear to be administratively disproportionate. I am not sure it could be completed within a year. Currently, approximately 600 bodies overall are subject to FOI and it is unclear why an annual review would be required of the status of each one of them. Where there has been a material change to the status of a body or some other issue has arisen, this may continue to be dealt with on an ad hoc basis, as and when it arises.

Section 5 would oblige the Information Commissioner to give up his jurisdiction where he finds that, "a head intentionally or recklessly failed to fulfil his obligations in a material respect under this Act" and instead refer the matter to the Standards in Public Office Commission, SIPO. It is not clear what jurisdiction the SIPO would have to take on such a referral. A detailed framework for investigation and powers would likely be required. On the other hand, insofar as a breach of the Ethics in Public Office Act 1995 is at issue, there is nothing to prevent a complaint being made as matters stand. The Information Commissioner already has extensive powers to review decisions of FOI bodies and to direct release of records or further searches to be carried where the commissioner believes there is a basis for doing so. While implementing FOI may be challenging, there is no evidence in the commissioner's annual reports or decided cases that there is any prevalence of a wilful disregard of FOI obligations. If such behaviour were identified, there are mechanisms through which it could be addressed and in the past, where bodies have experienced particular difficulties implementing FOI, we have seen the support and collaboration that has been forthcoming from the commissioner's office, as well as the Department of Public Expenditure and Reform and this has led, in turn, to marked and verifiable improvements in practice.

The Government decided last autumn that a comprehensive review of the FOI system was to be undertaken by the Department of Public Expenditure and Reform. This is a complex policy area and the review will offer multiple opportunities for interested stakeholders to contribute their views. It is the intention of the Minister that the review will be completed by mid-year.

This will be followed by a memorandum to Government to outline the findings of the review and set out associated recommendations which may well include amendments to the legislation. Given the substantial overlap between the Bill before us and the wider review of the Act which has been completed, the proposed time-limited amendment of nine months to the motion that the Bill be read a Second Time will allow a sufficient period to advance the review. In the interim, Deputies are welcome to contribute further to the review. I encourage them to do so and commend them on their continued interest in improving the FOI system.

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