Wednesday, 16 July 2014
Freedom of Information Bill 2013: Report Stage
I move amendment No. 1:
In page 9, line 14, to delete "Office" and substitute "office".This corrects a typographical error, placing a lower case "o" in place of an upper case "o".
I move amendment No. 2:
In page 9, line 27, after "that," to insert "immediately".Amendments Nos. 2, 3, 7 and 8 are designed to make the provisions more precise. When the Bill refers to a body or entity that was a public body "prior to enactment", what is meant is a body or entity that was a public body immediately prior to enactment. Amendments Nos. 10 and 11 relate to the definition of "effective date" in section 2. They are purely technical and arise from further legal advice from the Parliamentary Counsel recommending an improvement in the language.
I move amendment No. 4:
In page 10, lines 2 to 4, to delete all words from and including "appoint," in line 2 down to and including line 4 and substitute the following:"appoint.".I will discuss amendments Nos. 4, 16, 33 and 34 together and they cover two separate issues. They provide that the Minister can make an order under section 6 and a draft of such order must be approved by way of positive resolution from both Houses of the Oireachtas and it must be ensured the appropriate commencement date is provided in the case of each new body that will become subject to freedom of information for the first time either immediately upon enactment or in future.
Amendment No. 16 deals with the issue we discussed on Committee Stage about having a positive resolution of the Oireachtas. This amendment and the first part of amendments Nos. 33 and 34 deal with my proposal that an affirmative resolution of both Houses would be required in respect of any ministerial orders to be made under sections 6 and 7 covering public and prescribed bodies. Deputies MacDonald and Fleming raised this issue on Committee Stage and I am happy to provide for what they intended in the Bill.
While there are some problems in this legislation, it has improved since Second Stage, on Committee Stage, as the Minister has taken on board some of our suggestions. He is one of the few Ministers to have taken on board the substance of the majority of the issues we raised, with one exception. Search and retrieval fees, Irish Water, Eirgrid, and bringing a draft order before the House are all issues we raised. It is a tribute to us in opposition but also to the Minister that he has accepted them. Other Ministers might not have done so.
We asked that before a regulation is passed it be brought to the House. That is in my amendment No.17. I tabled it on Committee Stage but withdrew it in order to have it discussed in the Chamber, not outside, after which it would be published in Iris Oifigiúilor laid in the Oireachtas Library. Amendments Nos. 33 and 34 allow for this and state that a draft order will require a resolution of the House. I would even have been happy with a debate at the relevant committee but it is good to require a resolution of the House.
I compliment this Minister in particular because other Ministers should have done this. As I said on Committee Stage, I do not trust the Government generally but will in most cases make an exception for this Minister. The former Minister for the Environment, Community and Local Government laid the statutory instruments for Irish Water in the Oireachtas Library at very short notice, making it almost impossible for the local authorities to meet the deadlines. That was because the draft instruments were not brought before this House. That is the substance of this amendment and of the issue I am speaking about. I contrast what the Minister is agreeing to do, which I am happy about, with what his former Cabinet colleague did in respect of amending the local property tax rate by local authorities. That was published only a couple of days ago, which made it almost impossible for local authority members to meet that objective and to honour commitments made by the Minister’s party and mine. He did it slyly by placing it in the Library without any debate in the Houses of the Oireachtas or at any committee. That was not the way to do it. The way this Minister is doing it, bringing it before the House for a positive resolution, is a welcome contrast to how other Ministers act. I single out that example because it happened recently and is probably the most topical one at the moment. When we come to amendment No. 17, I will be happy to withdraw it because I am satisfied with the Minister’s amendments Nos. 33 and 34, which achieve the same objective.
I thank the Deputy. I do my best to listen to the views of the Opposition. I have said repeatedly that there is no monopoly of wisdom on this side of the House. When people go to a lot of bother to research and present a case, I do my best to listen to it.
I move amendment No. 5:
In page 10, line 5, to delete “Section 8shall come into operation on such day or days” and substitute “Section 8shall come into operation 12 months from enactment or on such earlier day or days”.I propose this amendment on foot of a request made and debate we had on Committee Stage following Deputy McDonald’s amendment. My amendment No. 5 mirrors Deputy McDonald’s Committee Stage amendment and her Report Stage amendment No. 6.
The new text will provide that section 8, relating to publication schemes, will be commenced no later than 12 months following the enactment of the Bill rather than the open-ended provision originally proposed.
I move amendment No. 9:
In page 10, line 35, to delete “21 April 2008” and substitute “1 January 2007”.This concerns the date applied to an entity not considered as a public body within the meaning of the 1997 Act but which will be considered as a public body under the new legislation. The Minister indicated previously that his choice of 21 April 2008 was random, that there was no particular logic behind it. My amendment therefore proposes a retrospection period of seven calendar years. It would be important for the sake of public confidence and in the interest of open government and transparency that a period potentially relevant to accessing information on the economic crisis not be excluded on the basis of being out of time. I propose therefore that we shift the timeline back as contained in my amendment.
I am conscious that we discussed the need to allow for some element of retrospection but that must be balanced with the need to ensure that it is practical. I have discussed this on foot of our previous discussion with the chief executive officers, CEOs, of bodies that will be embraced now. Going back so far where they have not marshalled the data would be an enormous administrative burden. The Act will be applied retrospectively but that must be in a way that is practical. I am satisfied, having reflected upon it, that the date I selected, 21 April 2008, which is a long way back – many resist going back that far – strikes an appropriate balance between pushing it back to a reasonable start date and imposing a burden on the bodies such that they could not marshal the data for so many years in an appropriate form for FOI, which would be unreasonable. Having reflected upon it, I will stay with the date I originally proposed.
I have no doubt that there would be some resistance to retrospection and by definition any level of retrospection brings with it an administrative workload. Will the Minister consider that again, bearing in mind that this Act is part of the architecture to which the general public as well as the political class or journalistic fraternity look for confidence in the public system, for transparency and accountability? Given the calamity the State and more importantly, the people, have come through, it is really important that the retrospection capture those additional 15 months. It does add administration but I do not accept that it is so onerous as to be the argument to reject the amendment. I hope the Minister takes my point about the timeline because there will be an inquiry into matters related to banking. There is probably a range of questions in the public mind that might legitimately be asked about that period, when the Minister was not in office, and which should be answered.
I disagree entirely with the Minister's analysis. I ask him to reconsider. I will be pressing this amendment.
As I have said, my intention is that 21 April 2008 will be the date that will apply to the vast majority of bodies under the Act. We will all recall that 2008 was before any of the egregious things that happened during the banking and financial crisis. All of those things flowed after that date. All of that area will be captured by this date. There has to be a balance. As the Deputy can imagine, when I was making the case for the date to be 2008, there was significant push-back from many people who did not want to go that far. I was reminded that this would impose a substantial additional burden on people. I was told that by definition, documentation was not in a form that was appropriate to freedom of information. It was suggested that it was onerous enough on them to have to go back all those years. I think this is a reasonable step in that context. Of course the Minister has the power to extend the retrospective date. That is done on a case-by-case basis. The imposition of a date other than 21 April 2008 will be considered on a case-by-case basis. For the generality of organisations that will be encompassed by freedom of information, it is reasonable to have a clear start date. It is signalled in the legislation. They have been preparing for it. I do not want to impose a burden on them over and above that.
I move amendment No. 10:
In page 10, line 35, to delete "or such other date as the Minister may by order appoint" and substitute "unless provision is made to the contrary by order under section 6".
I move amendment No. 11:
In page 10, lines 36 and 37, to delete "such prospective date as may be prescribed by order" and substitute the following:"the date that the order prescribing the body under section 7(1) is made, other than where a later date is specified in that order".
I move amendment No. 12:
In page 11, between lines 5 and 6, to insert the following:" "entity" means a person, body of persons, organisation or group;".The expression "entity" has been used throughout the Bill to describe a body or company, etc. The Office of the Parliamentary Counsel has advised that this expression, which is used often in the Bill without being subject to a definition, should be defined. Therefore, this amendment proposes to define "entity" as "a person, body of persons, organisation or group".
I move amendment No. 13:
In page 12, between lines 9 and 10, to insert the following:" "Minister’s FOI Data Manager" means the person appointed by the Minister for Public Expenditure and Reform within his or her Department responsible for collating and publishing all FOI related data;".We have discussed this proposal previously. This amendment refers to "his or her Department". When I put amendments together in future, I think I will make a presumption and use "her or his" instead of "his or her". Can we agree on that?
It is a note to self. The notion underpinning this amendment is that there should be some coherence in the collation of data about freedom of information requests that are granted, refused or delivered on. We discussed this proposal on Committee Stage. This amendment seeks to provide for such coherence and define in legislation how it can be achieved.
A number of the amendments in this group are in my name. As the Minister knows, we discussed some of them on Committee Stage. Some of them are not quite new. Amendment No. 37 seeks to "make provision for the establishment of a database to include all information released under the Act" and to provide that "such database shall be made available to the public" to easily obtain. I am asking that this be done "within 12 months on the enactment of this Act".
Amendment No. 38 seeks to ensure that each of the many freedom of information bodies "shall ensure that all staff employed by that body dealing with FOI requests shall be provided with adequate training". I think everyone will agree that this is needed. I am aware that a code of practice and certain procedures will be developed. I am asking for a firm commitment that this will actually be done.
Amendment No. 80 proposes that "“The Minister shall, within 3 months of the enactment of this Act, draw up and publish a code of practice". We need to see that. I am putting a timeline on it because I do not like to see these matters drifting. Given that this legislation will have to go through the Seanad in the autumn, I presume we will be into next year before it is enacted. I would like to see a timeline on the code of practice.
Amendment No. 81 proposes that the code of practice provided for in amendment No. 80, which calls for the code to be introduced within three months, "shall include provisions to promote the publication of official and other information". I want to replace the word "may", which is in the Bill as it stands, with the word "shall" because it is more definitive. I always worry about the word "may" because it leaves open the idea that something may not be done. I want to make the promotion of the publication of information compulsory because, as the Minister will be aware, public officials have statutory protection if they release something through freedom of information. They do not have that protection if they release information other than through freedom of information. There can be a lacuna if information is released in such circumstances.
As a Member of this House, I have had experience in this regard with different Departments over the years. I do not recall a particular case. I have often made a request for specific information on a certain topic to be sent to me, only to be advised by an official that I should submit a freedom of information request, or get the person on behalf of whom I am making the inquiry to submit a freedom of information request, so that the information in question can be released promptly under freedom of information. Some Departments are good at releasing information promptly, but others are not so good at it, perhaps because they are not comfortable with the process or they are concerned that some issue might arise down the road if the information is released other than through freedom of information. I am trying to get rid of that type of culture and make sure provision "shall" be made for the promotion the publication of official and other information.
Many new bodies have come under the aegis of the Freedom of Information Acts in recent times. More of them will be covered by freedom of information as time goes by. I hope most of the new bodies will be covered. Irish Water has eventually come around to that point of view. There is still a culture of not releasing information, however. Local authorities are notorious for not releasing it. I will give a little example. I tried to search the websites of local authorities to find details of licences issued for public events. That information is not available on most local authority websites. They do not even have a link. There are sections on planning, planning queries, planning exemptions and county development plans, but there is nothing about licences that have been issued.
Hundreds of thousands of people will attend events like the National Ploughing Championships and the Electric Picnic that are to be held in my home county in the coming months. Information on these public events should be publicly available. I have been told that managerial orders are meant to be public, but they are not public. They are probably in a ledger in the bottom drawer of a desk in the office of some staff member or manager somewhere. One would probably need a code to access some of these documents. It is like the third or fourth secret of Fatima. People will say they are available in theory to be inspected, but they cannot be found or accessed. I have never seen a register of managerial orders published. I do not see it on local authority websites.
This level of secrecy also seems to apply to tender documents, for example, when houses are being built. I will give an example. When some houses were being built in my constituency, a list of tenders was published. A list is normally issued to every company that has made a tender application so that it knows where its price stands by comparison with the other prices that were received. That list does not seem to be publicly available even though millions of euro in public money is spent on various schemes, such as those involving the construction of schools and roads. It is difficult to get information from the National Roads Authority about major roads projects. I am not talking about the secrecy that attaches to some commercial aspects of public private partnerships. I am talking about trying to get information from public bodies.
My view is that, in general, public bodies would not provide information if they were not forced to do so and would not make decisions if they were not legally required to do so within a certain timeframe. Decisions would never be made on some planning applications if a legal timeframe did not apply. They are decided on only because there is a legal timeframe. There must be a legal mechanism to promote the publication of official and other information. The Minister might take on board the generality of what I am saying here now. When one asks public bodies for information, such as a list of the licences that were issued in a certain county or a list of the prices that were received from tenders that were opened, they almost ask why one wants to know such details.
They might not say that but that is the attitude. I am not referring to the people in my county with whom I have an excellent relationship, but it is across the board. With regard to the Health Service Executive, I will not even go there. If one tries to get information through a parliamentary question, it is referred to the HSE and about six weeks later, which I believe is its normal timescale, one receives a letter. The person about whom one is inquiring could be dead or alive at that stage, but that is how it operates.
Publishing information, and I am not talking about personal information, is not yet fully ingrained in the public service. I hope this measure will help, but it will take more than this Bill. It will take the Minister's code of practice to force it through, and that is why I inserted the word "shall". I will not go to the wire on the word "shall" versus "may" but am merely making my point.
My question is more to do with the compatibility of two legislative measures. I raised issues about historical records as they relate to genealogy on Committee Stage and I was reassured by what the Minister said on some aspects of that but the Bill defines birth, death and marriage records as personal records. I attended an event recently where the Minister for Social Protection was helping to launch the online indexes of the General Register Office. Regarding the actual records, she announced that there would be a change in the relationship. My understanding is that it would become a much more public process but that a time limit would apply, it being 100 years for births, 50 years for deaths and 75 years for marriages. Is one legislative measure compatible with the other? Will those records become public records within those time limits as opposed to personal records as defined by this legislation?
Has thought been given to the issues that might be thrown up relating to the terms of reference for the inquiry into the mother and baby homes? Are there issues that have been considered in the context of that inquiry? To take the example of the Magdalen women, I found it difficult to work through a number of cases with some of my constituents. They are believed because the institutions' records are available but general records from the Department of the Environment, where there would have been a linkage with local government and the Poor Law, may not contain the persons' names but by virtue of the fact that they do not, it disproves something that is being taken as proof. In that situation, access to records has a bearing on the individual. Has that been considered in the context of freedom of information or does it need to be considered?
A number of different issues were raised and I will deal with them on a Deputy by Deputy basis. On the amendments submitted and spoken to by Deputy McDonald, Nos. 13, 43 and 48, as I indicated previously I am not inclined to accept Deputy McDonald's proposal to appoint an FOI data manager. I agree with the Deputy, however, that the role of the FOI central policy unit, which lies within my Department, needs to be significantly enhanced in terms of establishing, supporting and securing compliance with good practice across all public bodies subjected to FOI.
A strong, expert and authoritative leadership of the FOI central policy unit is critical to the effective and efficient operation of FOI across public bodies. One of the deficiencies I discovered, and I have been using FOI over the years, is the lack of consistency in application and the lack of proper training for FOI officers. As I have indicated previously, the Department of Social Protection gives out a great deal of information but it is very difficult to extract information from others. We need to have uniformity and a common practice and understood code.
The central policy unit is responsible, in consultation with public bodies and working with the newly established FOI networks, to ensure the policy and legislative framework that supports FOI is effective and operates across all public bodies.
In particular I expect that the strengthened system which is intended to be put in place for dealing with requests in public bodies and the measures to promote the proactive publication of information without FOI, which is also important - we should be putting up more - would lead to a substantial increase not only in the data available but a diminution in the need for FOI requests.
I have also considered Deputy McDonald's proposal that all FOI decisions and determinations, and all extensions of time for consideration of FOI requests, should be submitted to a data manager. Notwithstanding the fact that I am not in favour of the appointment of a data manager per se, I have provided in the draft code of practice that I published - I think I circulated it to everybody - that statistics should be collected, including statistics on the proportion of requests answered within the statutory timescales, the number of requests that had been refused, the number of reviews that have been carried out and so on and provided by organisations subjected to FOI.
I have also provided that all public bodies would publish disclosure logs which would set out, for example, the date of the request, what was sought, the decision made and the date of release. That goes a long way to meeting the needs expressed eloquently on Committee Stage by Deputy McDonald.
Regarding Deputy Fleming's amendments Nos. 37, 38, 80 and 81, much of what the Deputy said fits into what I regard as the most exciting initiative that I am determined to drive, which is not FOI but open data. We need to have, as a matter of routine, data sets available. That is a separate but very important discussion.
Deputy Fleming's amendment No. 37 proposes to establish a database to include all information released under the Act. As Deputy Fleming will be aware, a review of the implementation of the FOI Act was carried out and in that context, consideration was given to the publication of all records which are released. It is something I thought might be a good idea. The report of the external review group set out that some Government Departments, such as the Department of the Taoiseach and the Department of the Environment, Community and Local Government, already publish a disclosure log. Other Departments, such as the Department of Communications, Energy and Natural Resources and the Department of Transport, Tourism and Sport, as well as publishing details of what has been requested, also publish the actual records disclosed.
While the external review group recognised the benefits of publishing such information, they all acknowledged the potential legal, administrative and practical difficulties of widely publishing information released under FOI. In addition, the Department in question advised that there is no evidence that the publication of the records led to a more efficient FOI regime, which reduced the number of FOI requests received on the same topics or issues.
As already outlined, I proposed in the draft code of practice for FOI that all public bodies would publish disclosure logs on the nature of the information requested and so on and setting out exactly what such logs should include. Furthermore, when someone seeks the records released under FOI, the same record will be provided to the new requester with only the cost of literally reproducing them. As such, the records which have been released can be provided if requested without imposing any additional administrative burden on bodies.
Regarding Deputy Fleming's amendment No. 38, I agree with the sentiment of the proposal and I am happy to advise the Deputy that section 8(11) of the Bill provides that in accordance with the code of practice for FOI, each Minister shall ensure that appropriate measures are taken by public bodies under his or her aegis in respect of training of staff.
In addition, the draft code, which I have already published for consultation, contains detailed information on the training and the obligation of public bodies in this regard. That meets the objective set out, certainly, on Committee Stage by Deputy Fleming.
In amendment No. 80, Deputy Fleming asks that a code of practice be published within three months of the enactment of the Bill. As outlined, a draft code of practice has been developed based on the findings of the review that I have already circulated to Deputies opposite. I published that draft code recently. It is my intention that the draft code would be finalised on enactment of the Bill. The code, together with the accompanying manuals on the nuts and bolts of the administration of FOI requests and any guidance notes made under the code, will of necessity be living documents that will require to be updated, refined and extended over time.
I also share Deputy Fleming's view as expressed in his other amendment, amendment No. 81, regarding the publication of official information. I am pleased to advise the House and Deputy Fleming that the draft code contains provisions providing proactive publication of information. It is intended to promote much greater access to information outside of FOI - this is the point I am making about open data - than is currently the case. Greater publication of official data and information is also consistent with the Government's commitment to participate in the multilateral open government partnership, the European element of which I was privileged to host here. In politics, certainly, in an administrative Department such as my own, one does not get excited about new initiatives too often, but I am very excited about the open government partnership. It is a basis for reforming the way Government and agencies of Government operate and providing for much greater openness. For those reasons, I do not see the necessity for the Deputy's amendments and I will not be accepting them.
Moving on to Deputy Catherine Murphy's request, it is going back to a debate we had at Committee Stage on legislation governing access to birth, death, and marriage certificates held in the General Register Office, GRO. Section 61 of the Civil Registration Act 2004 sets out the governing rules in that regard. Following an application to the GRO, a person may search an index which is open to the public and, following payment of a prescribed fee which is currently €20, can obtain a copy, for example, of anyone's birth certificate. Clearly a certain amount of information would need to be known in order for that search to be carried out - one would have to have the basic data to conduct the search concerned.
The GRO is part of the Department of Social Protection - I note what Deputy Murphy stated in terms of the comments of the Tánaiste and Minister for Social Protection, Deputy Burton - but the GRO is subject to FOI and will remain subject to this Bill when enacted. The proposed legislation will not prevent access to the registers as provided for under the Civil Registration Act. There is complementarity between legislation in that regard. I am not quite certain of what additional legislative changes the Tánaiste is proposing. I would say Deputy Catherine Murphy is probably more up to speed on that, if she has listened to the utterance of the Tánaiste, than myself. I am sure we will discuss that when the relvevant legislative provision, if it is new, comes before the Houses. Certainly, it would have to come to Cabinet in the first instance.
That said, and following on from some of the contributions from Deputy Sean Fleming, we all recognise that there is a cultural resistance to varying degrees around the sharing of information. To address that aspect the Minister indicated where data is to be freely shared. This should at some point, at least in theory, render FOI legislation, if not redundant, certainly less critical in the architecture. We are not yet there and we have some way to go.
I appreciate what the Minister said in terms of the code of practice. He acknowledged the need to have oversight, a statistical analysis, etc. We are on the same wavelength on that.
When I was on my feet, I should have spoken on amendments Nos. 47 and 48 - I only referred to amendment No. 13 - but I do so now. The idea of this data manager and the idea of making it compulsory that this information be submitted to the data manager is to a large extent to intervene legislatively in a way that is mandatory to break and reshape that culture of resistance wherever it exists.
I still wish to press my amendments. I understand that amendment No. 13 will be the critical one in the group because the other two flow from it. I take the view that it is necessary to have it stated in legislation, to have this data manager in place and to have statutory obligations associated with the submission of information on an annual basis to that manager. At this point, it is a necessary measure. Undoubtedly, I hope that this kind of provision would be unnecessary at a future point but, as I stated, we are not at that point just yet.
I appreciate the Minister's comments. He stated that under section 8 (11) each Minister of the Government shall, in accordance with the code of practice made under section 48, ensure that the relevant measures are put in place to deal with the code of practice. Unfortunately, and I will not unnecessarily labour the point, while section 8 speaks of "shall", section 48, when it deals with code of practice, states "The Minister may draw up". The Minister has answered it in a way. It was not as tight as that, but I accept his good faith on it. At this stage, I am getting tired of saying that.
The Minister has gone a lot of the way. At the end of this process, I am sure there will be an issue or two, but generally, out of all the sections in the legislation, it will have fairly substantial cross-party support.
My only other issue is directly related to this, but the Minister cannot do much about it. It refers to the question of data. The Minister represents Wexford which, like my own, is a rural constituency. Not only are there parts of Wexford, Laois and several other countries that do not have adequate broadband for citizens to avail of this open data to check on Government bodies but, while there is a mix of broadband services available, there are large parts of the Minister's constituency where there is not even a mobile telephone signal. I am sure the Minister loses his signal in some parts of his county - in parts of mine, I do. I am only saying one must enable citizens access this information. While this is not within the Minister's remit, I should point out that open data will only be as good as the communication highways to allow citizens get at the data.
The point I was trying to make is that this Bill defines the GRO records as personal records. What seemed exciting about what the Tánaiste and Minister for Social Welfare, Deputy Burton, had to say was that once the records are outside of the time limits - 100 years for a birth, 75 years for marriage and 50 years for a death - they become public records. There is one piece of legislation stating that they are public records within a defined space, which is important from the point of view of those conducting research. The Freedom of Information Bill 2013 states these are personal records. The question concerning the compatibility of the two was the point I was making. The main point at issue here is that citizens can access the records.
The second point is that the terms of reference have not been finalised for the inquiry which will be the subject of debate here tomorrow. Records will form a big aspect of that.
The National Archives has 70,000 boxes of files that have not been catalogued. That in its own way produces an access issue. There are even records that people do not know exist that have the potential to complete the jigsaw. Has the Minister had any input in the terms of reference on some of the records that may well impact on this legislation?
A significant volume of statistical data is published in the Ombudsman’s annual report. All the statistics Deputy McDonald is seeking are published there. This can be refined. I had a discussion with the Information Commissioner during the week about the implications of this legislation. I believe it will be warmly embraced and more data will become available.
I do not know what is on the mind of the Tánaiste and Minister for Social Protection regarding the matter raised by Deputy Catherine Murphy. The terms of reference for the inquiry, which do not pertain to this legislation, will not be discussed tomorrow because they are not yet finalised. They will be in the autumn because we want as inclusive a discussion on that matter as is possible.
I move amendment No. 14:
In page 13, to delete lines 25 and 26 and substitute the following:“(I) in a case where the individual holds or held—This amendment will broaden the definition of what does not constitute personal information in section 2. The terms and conditions of any individual who holds or held any office or position in a freedom of information body remunerated from public funds will be made available under freedom of information rather than just those of a director or member of staff as is the current arrangement.
(A) office as a director of,
(B) a position as a member of the staff of, or
(C) any other office, or any other position, remunerated from public funds in, an FOI body, the name of the”.
This might seem like a small amendment but it is actually quite big. It means the terms and conditions and remuneration of a person employed by a body in receipt of public funds and covered by freedom of information will be covered by this legislation for the first time.
I move amendment No. 15:
In page 14, line 21, after “services” to insert the following:“and contract for services in this definition includes an administrative arrangement between an FOI body and another person”.It was always intended that this Bill would provide that Bus Éireann school transport services, carried out on behalf of the Department of Education and Skills, would be subject to freedom of information. This was discussed on Committee Stage in some detail. I advised then that the service would be covered within six months of enactment through the restoration of the application of freedom of information to records held by service providers, in so far as the records relate to a service provided for or under contract from the freedom of information body.
However, a recent High Court case determined the Department of Education and Skills has an administrative arrangement with Bus Éireann rather than a contract. I have provided, therefore, for an amendment to the definition of “service provider” in section 2 to ensure Bus Éireann school transport services will be covered by freedom of information in accordance with the new determination of the High Court.
My amendment addresses Deputy Sean Fleming’s amendments Nos. 22 and 99. I hope he will not move them for that reason.
Regarding the Deputy’s amendment No. 40, it would not be possible to provide a list of bodies which might provide services under contract to a freedom of information body in the future. It was not deemed necessary to provide such a list under the 1997 Act. I am not aware that any difficulty has arisen in the intervening period in providing up-to-date access to such records, even though they were restricted by the 2002 amending legislation. I do not believe the amendment is necessary.
The Minister said the High Court stated there is an administrative arrangement between the Department of Education and Skills and Bus Éireann, as opposed to a contract. Will the Minister explain what this entails?
I have learned something new today and it is a good day when one learns something new. Why can the Department of Social Protection not have a similar administrative arrangement with An Post for social welfare payments? I suspect these type of administrative arrangements do not have to go through tendering. This would get rid of the argument that a contract must be put out to tender. The High Court has opened up an interesting vista. While I am looking for the best price for the taxpayer, I would be concerned about administrative arrangements because they cannot be appealed as they are not a statutory process. Is value for money obtained if these are not put out to tender? Will the Minister send us a note on administrative arrangements versus contracts from a public expenditure viewpoint?
Amendment No. 40 deals with providing a list of service providers under section 10(9). I know it would be difficult to compile such as a list as it would be a rolling issue due to changes in contractors over time. I accept there would be practical difficulties in implementing this amendment. However, take a body such as the Health Service Executive, which has a variety of service providers such as section 38 and section 39 organisations. Some of them have rolling contracts from year to year. We have found that, because they are service providers and the funds are not voted by the Dáil, essentially they are a third party, and even the Committee of Public Accounts cannot compel them to give evidence before it. I am trying to get information on these bodies through freedom of information as it is taxpayers’ money in the end. There are 25 section 39 bodies getting over €5 million each from the State per annum.
The money is voted by the Oireachtas to the HSE but because it goes to the HSE we - even the Committee of Public Accounts or the Joint Committee on Health and Children - are precluded from holding to account the bodies who receive the money. I am trying to reverse the position now in order that we could get some information from those bodies through FOI.
This is a good day's work if the logjam is brought to an end in terms of public accountability for funds provided to section 38 and 39 agencies, which currently cannot be obtained by anyone in the Oireachtas, including the Committee of Public Accounts and the Joint Committee on Health and Children, because they are not the people who receive the money voted through the Houses. In due course, when the changes are implemented we will be able to access information from all of those bodies through FOI, and obtain all the information we have not been able to get heretofore. That is progress. We should publicise the changes, which are good. I tabled a number of amendments, which are grouped together. Do I have time to speak on them?
I apologise to you, a Leas-Chathaoirligh, for speaking across you. It is intended that where there is a contract of service or an administrative arrangement between a body and a public body, it will be subject to FOI. That opening to which Deputy Fleming referred will be available once the legislation is enacted.
I must put on my legal hat to respond to what is the difference between a contract of service and an administrative arrangement. I will give the Deputy the detail if he is interested. Originally I brought to Government and it approved the restoration of the 1997 situation that was undone in the 2003 Act, which took school transport out of the system. I put it back, or at least I thought I had until the High Court judgment by Mr. Justice Brian McGovern. The question arose in a case whether Bus Éireann school transport operations would in fact be covered by the provision due to the finding that the arrangement between the Department of Education and Skills and Bus Éireann was an administrative arrangement and not a contract within the meaning of Council Directive 2004/18/EC relating to public service contracts and the European Communities (Award of Public Authorities' Contracts) Regulations 2006.
Specifically, if one asked me what the difference between a contract of service and an administrative arrangement I am afraid one would have to go to a legal adviser for that, but I wanted to make sure whatever the situation it was captured and therefore I refer in the amendment to both contracts and administrative arrangements.
I move amendment No. 19:
In page 15, to delete lines 25 and 26, and substitute the following:The purpose of the amendments is to ensure that in the case of any public body that is subject to FOI in full, its subsidiaries and bodies that are directly or indirectly controlled by the body are also subject to FOI in full. It is also to ensure that any exemptions applying to bodies included in Schedule 1 extend to subsidiaries of such bodies controlled directly or indirectly by such bodies. The amendment is being proposed on foot of legal advice that it was necessary to make clear the provision regarding subsidiaries of bodies. I had proposed amendments on those lines on Committee Stage but withdrew them because of the drafting which proved to be quite complex. I went back to the Parliamentary Counsel to get a refined draft and that is what I offer to the House now. The Office of the Parliamentary Counsel took the opportunity to restructure the section to make it clearer and easier to follow. In essence, that where the parent body is in then all its subsidiaries are in and where it is out then all its subsidiaries are out.
“Subject to this section, each of the following”.
I thank the Minister for clarifying the issue. I had made a note to ask how it dovetails with Ervia, the new fancy name for Bord Gáis, of which Irish Water is a subsidiary. Bord Gáis Éireann is an exempt agency. Schedule I of the Act deals with exempt agencies. I refer to page 75 of the Act. Irish Water is a subsidiary of an exempt agency. The Minister has already agreed to make Irish Water subject to FOI, but not the parent company. The situation does not appear to work in reverse. I understand it is a different process.
The amendment has limited merit. I note that Bord na Móna is an exempt agency. I accept it is a commercial entity. One of its subsidiaries is AES, which is one of the biggest waste collection companies. There is no point in saying subsidiaries of companies are included if the parent body is an exempt agency.
When I was going through my notes on the Bill I was struck by the fact that the legislation is simple but it is very complicated to read. I have gone through it and noted the definitions for public bodies, prescribed bodies, partially included agencies, exempt agencies, enactments excluded from the Act in respect of bodies which are included in the Act, or enactments specifically included, non-disclosure enactments, exempt records and an entire section dealing with restrictions on the Act to records in terms of various types of organisations. I understand the situation outlined by the Minister in a case where the parent company is not an exempt body, partially exempt or covered by the enactments excluded, a non-disclosure enactment, an exempt record or a body whose records are subject to certain restrictions under the Act. That is good. However, a fair amount of people are excluded. It is good that subsidiaries are included, in so far as FOI applies to any body. I am sure there are more bodies, records and exemptions included but following a cursory glance I wondered how one would explain the situation, which is quite complicated. The intention of what the Minister said is good but it is quite limited.
I think the first sentence spoken by the Deputy was correct. He said this is simple but sounds complicated. The legal structures of many bodies in receipt of funds from the State coffers mean I must deal with them in a clear legal way. I wanted to cast the blanket as widely as possible, subject to a few caveats that include commercial activities that will be dealt with in some amendments later, including amendment No. 102 relating to Ervia. It is important that we do not stymie commercial State companies in their operations. Deputy Sean Fleming mentioned Advanced Environmental Solutions, AES, which operates in a competitive market with many serious players, though I could say more about some of the companies operating in the waste management sector. I do not think an onerous new open reporting burden should be placed on State companies that is not placed on their commercial counterparts because this could give the latter access to information commercially damaging to the State companies.
I support State enterprises and I want them to be treated separately but apart from this the FOI blanket is thrown over almost everything else, except narrow areas relating to the security of the State and international relations. I think the Deputy will recognise this.
I move amendment No. 20:
In page 15, between lines 28 and 29, to insert the following:“(b) the Office of the President;”.This seeks the inclusion of the Office of the President and was discussed on Committee Stage. Amendment No. 21 seeks the inclusion of the administrative functions of Tourism Ireland because it is included as an exempt body in the schedule.
I do not think that is a reason to exclude it as people in the North are sufficiently open, though it may be necessary to hold talks.
Amendment No. 23 deals with receivers and administrators working for or on behalf of the National Asset Management Agency, NAMA. We are talking about people with service contracts or administrative arrangements with a State body. I presume the National Treasury Management Agency, NTMA, was excluded but I think it should be listed as a partially-included agency, based on its administrative functions. We all agree that there are matters of commercial sensitivity but aspects of the work of these organisations are not related to commercial sensitivity, especially work carried out by receivers and administrators on their behalf. This applies to NAMA to some extent but I am trying to capture other bodies that might, as mentioned by the Minister, utilise people providing contracts for services or administrative arrangements. Will the work of receivers and administrators for the National Asset Management Agency fall under this freedom of information legislation when it passes?
Amendment No. 79 deals with the Office of the President and restricted bodies and this point has been well made. Amendment No. 103 seeks the removal of the Food Safety Promotion Board from the list of exempt bodies, though the Minister will say it is a North-South body. I think we need to address the issue of North-South bodies. The Food Safety Promotion Board would not be restricted if it was a 26-county body and would be open to FOI requests. Food safety and traceability are very important issues and I am sure those in the Northern Ireland Assembly agree. I do not know whether FOI legislation from Northern Ireland or Westminster covers this but I do not believe the view on this would be much different. I suggest a co-ordinated approach to FOI for cross-Border bodies be adopted at the next North-South Ministerial Council meeting.
The Minister will understand why I make this point.
Amendment No. 105 deals with Tourism Ireland and amendment No. 106 seeks to remove Waterways Ireland from the list of exempt bodies, though I know there is a North-South dimension. Perhaps discussions are underway to bring about these changes because there is a lacuna in the legislation where matters that should be subject to FOI scrutiny are exempt due to a North-South dimension.
These are all Deputy Sean Fleming's amendments addressing issues that were debated on Committee Stage. I have not changed my mind on the Office of the President as the tradition that the President is above politics and outside the fray is accepted. I considered the amendment but will not accept it.
Amendments Nos. 21 and 105 relate to Tourism Ireland while amendment No. 103 relates to the Food Safety Promotion Board. Amendment No. 106 applies to Waterways Ireland. Tourism Ireland, the Food Safety Promotion Board and Waterways Ireland were established under the British-Irish Agreement of 1999 and were given statutory effect in the British-Irish Agreement Act 1999. Tourism Ireland was established separately under the framework of the British-Irish Agreement. These bodies all operate under a code of practice on access to information that has been approved by the North-South Ministerial Council. The code is based on the FOI legislation in both Ireland and the UK and its primary objective is to facilitate public access to information held by these bodies. There is an administrative arrangement analogous to FOI for these bodies.
Regarding amendment No. 23, concerning whether receivers and administrators appointed by NAMA or another secured lender fall outside the definition of a public body as set out in section 6 of the Bill, the receiver or administrator is an independent legal officer appointed to take control of and realise the assets secured by a loan. The receiver or administrator acts as the legal agent of and for the benefit of the borrower and not the lender or secured creditor. The receiver or administrator's costs are borne by the receivership and not by the lender. Accordingly, I am advised it would not be appropriate to define receivers and administrators as public bodies and, therefore, the amendment is not accepted.
I will not labour this point and I do not wish to personalise the matter but this is not a matter of the Oireachtas encroaching on the functions of the Office of the President. It is a public office, the holder of the position is elected by the people of Ireland and long may this continue to be the case. I feel when people elect a person to an office they are entitled to know what goes on there and I suspect the current President, along with former and future Presidents, would not object to this amendment. I will not press the amendment because I do not wish to be seen as interfering but I feel the Office of the President would be open to this and would welcome it.
The Minister mentioned that North-South bodies are covered by an administrative arrangement.
It is not like the administrative arrangement between Bus Éireann and the Department of Education and Skills. There are many different types of administrative arrangement and I think there could be scope under this heading for many issues. North-South bodies should be covered by this legislation.
Unless there is agreement on both sides.
We would have to renegotiate the Good Friday Agreement to bring Tourism Ireland, Waterways Ireland, the Food Safety Promotion Board and all North-South bodies under the Freedom of Information Act. It will be a revelation