Jim O'Keeffe (Cork South West, Fine Gael)
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Question 40: To ask the Minister for Justice, Equality and Law Reform the procedures employed in his Department in the processing of requests under the Freedom of Information Acts from the date of receipt of a request to the date of supplying the information or declining to supply; if he, his advisers or other persons within his private office have sight of, are notified of or have their attention drawn to such requests or to information being released pursuant to such requests; and if he will make a statement on the matter. [16606/04]

Michael McDowell (Dublin South East, Progressive Democrats)
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The procedures followed by my Department in the processing of Freedom of Information requests are as governed by the provisions of the Freedom of Information Acts 1997 and 2003. When a freedom of information request is received by the Department, the request is acknowledged in writing not later than ten working days after receipt of the request. The letter of acknowledgement also notifies the requester of the Department's statutory responsibility to issue a decision within 20 working days of receipt of the request. In circumstances where a request is deemed non-personal, an application fee of €15 is imposed. A freedom of information file is prepared in the freedom of information unit, details of which are recorded on the freedom of information database, and the file is forwarded to the relevant deciding officer, normally at assistant principal officer rank within the Department. In instances where the request covers more than one division of the Department, a freedom of information file issues to each relevant deciding officer for decision.

Assuming the request is sufficiently clear to avoid a requirement for clarification, the deciding officer, upon receipt of the freedom of information file, will proceed to undertake a search and retrieval in respect of the relevant records. Section 47 (1) of the Freedom of Information Act 1997 provides that a charge may be imposed in respect of an undertaking for the search and retrieval of non-personal documents. The deciding officer will complete a schedule of documents, detailing the records considered under the freedom of information request and will decide on the release or non-release of each record, stating whether the request is granted, part-granted or refused.

In cases where records are part-granted or refused, the requester is provided with the relevant legislative provisions under which the records are withheld. The file is then returned to the FOI unit where the decision is documented and issued to the requester. The requester is notified of a right of appeal within the Department as outlined in the Act. The appeal is conducted by a principal officer within the Department who will undertake an independent review of the request. Upon receipt of the appeal decision the requester is afforded a further right of appeal to the Information Commissioner.

Where a request is submitted in respect of records directly held by my office, my officials will bring the matter to my attention so that both I and my office can fully comply with the requirements of the Act. There are also many circumstances in which correspondence relating to a specific area of my Department will be addressed directly to me as Minister or to my office. Any such correspondence is acknowledged in my office and passed to the relevant division for its attention. In such circumstances, a record will have been created in my office and may therefore be subject to the provisions of the Act. Should access to any such records be sought, the procedures in place are as I have described.

As a matter of good administrative practice, FOI requests in respect of documentation held in my Department, which upon release is likely to give rise to significant public comment, are brought to the attention of my office so that I too can be informed that the request has been made and how it is being processed.

Jim O'Keeffe (Cork South West, Fine Gael)
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The Minister sets out fairly rigorous procedures that are in place to ensure FOI requests are handled with great propriety. However, the central aspect of my question was whether the Minister or his advisers filter information before it is released. I am thinking in particular of a request filed by my party leader, Deputy Kenny, on 11 March seeking the minutes of the Minister's meeting with the masters of the maternity hospitals. After a delay beyond the 21 working days in issuing the information, it was given to a journalist, Sam Smyth, before the FOI documentation was released to Deputy Kenny.

Will the Minister not accept that this raises serious questions about the impartial operation of the Freedom of Information Act in his Department? Will he not accept that to an outside person it appears that the handling of Freedom of Information Act requests in his Department is being politicised by him?

Michael McDowell (Dublin South East, Progressive Democrats)
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On the contrary, a request for information under the Freedom of Information Act does not bind the Minister not to release that information to any other person before the request is dealt with. There is no monopoly on information under the Freedom of Information Act. I know some Ministers have made a habit of releasing such information to everybody if one person asks for it except in the case of personal information. The Deputy's view of the matter is misconceived. It is perfectly open to a Minister to release information even though it is the subject of a request under the Freedom of Information Act, and to act on it and make use of it in any way the Minister requires or believes is proper. A request for information under the Freedom of Information Act does not of itself somehow mark off that information as only to be released to the person requesting it.

Jim O'Keeffe (Cork South West, Fine Gael)
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Does the Minister not accept that it seems to be his policy to politicise requests under the Freedom of Information Act, which clearly was not the intention of the Act? Does he not accept that in this case the furnishing of the information was delayed, deliberately or otherwise and that just before it was released in response to the request it was released apparently deliberately by the Minister to Sam Smyth of the Irish Independent? Was this done to reduce its political impact or was it a coincidence that accompanying the information publicised by Sam Smyth was an article which bent over backwards in its understanding of the Minister's position and in its praise for his efforts in handling the referendum?

Is the Minister telling us in a barefaced way that he stands over this approach on his part? No blame attaches to Sam Smyth. If information is slipped to him of course he will use it. Is this the Minister's understanding of how this Act should operate? Is this how he will operate it in the future? Will he try to milk any requests lodged under the Freedom of Information Act for his own political gain? Will he not accept that is totally contrary to the entire spirit and to some extent the letter of the Act?

Michael McDowell (Dublin South East, Progressive Democrats)
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I accept none of those propositions. It is perfectly reasonable to put important information, which is about to be released, into the hands of somebody who will be objective about it rather than put it in the hands of somebody who will make political use of it. Far from politicising the process, by handing it to an independent journalist rather than to a political opponent, the public is much more likely to get a fair-minded view of the matter than is suggested.

Jim O'Keeffe (Cork South West, Fine Gael)
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On the basis that he would praise the Minister. That is outrageous.

Michael McDowell (Dublin South East, Progressive Democrats)
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There is a misconception, particularly among Opposition Deputies, that if they make a freedom of information request they will be the first to receive the information and that nobody else will receive the information, so that they can put the first spin on it and hunt through it for the bits of it they want to release to put the worst possible complexion on any matter.

Jim O'Keeffe (Cork South West, Fine Gael)
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Why did the Minister not put it on the Department's website instead of giving it to Sam Smyth?

Michael McDowell (Dublin South East, Progressive Democrats)
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I am very sorry to say that I do not play a naïve game of politics like that. While I play a robust game in politics, I will not enable my opponents to spin against me without having at least the opportunity to put my side of the story into the public domain.

Jim O'Keeffe (Cork South West, Fine Gael)
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We know where we stand for the future.

Michael McDowell (Dublin South East, Progressive Democrats)
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I will uphold the rights of a free and independent press wherever necessary.

Jim O'Keeffe (Cork South West, Fine Gael)
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God help us. I am glad he has gone off the idea of a controlling press council.