Wednesday, 16 July 2014
Freedom of Information Bill 2013: Report Stage (Resumed)
The Minister made it clear accepting this amendment would require a renegotiation of the Good Friday Agreement to allow cross-Border bodies come under the freedom of information legislation. I do not believe anyone involved in the negotiation of the Agreement felt it would turn out to be an impediment to the statutory improvement of cross-Border matters.
As far as I am concerned, I want the freedom of information blanket to be spread over all bodies receiving public funds. I have determined we should exempt the Office of the President. As for the North-South bodies, amazing as it sounds, I have been advised that because they are creatures of the Good Friday Agreement, then I would have to re-open it to change the terms negotiated. They are subject to freedom of information on an administrative basis. I will provide further details of that to Deputy Sean Fleming.
I move amendment No. 24:
In page 15, line 30, after “established” to insert “(other than under the Companies Acts)”.This amendment is being proposed to the definition of "public body" in section 6(1)(c) to make it clear it includes a body established or appointed by the Government or a Minister other than a body established under the Companies Acts. The purpose of this amendment is to avoid commercial entities created under the Companies Acts being inadvertently included under freedom of information.
I move amendment No. 26:
In page 16, between lines 7 and 8, to insert the following:“(2) (a) An entity specified in Part 1 of Schedule 1 (“the parent entity”) shall, subject to the provisions of that Part, be a public body for the purposes of this Act.
(b) A subsidiary of a parent entity, or a body directly or indirectly controlled by a parent entity, shall be a public body for the purposes of this Act but only to the extent that the functions of the subsidiary or other body coincide with those functions of the parent entity that are subject to this Act.
(3) An entity specified in Part 2 of Schedule 1, a subsidiary of such an entity or a body directly or indirectly controlled by such an entity shall not be a public body for the purposes of this Act.”.
I move amendment No. 27:
In page 16, to delete lines 11 to 23 and substitute the following:“(3) Where the Minister considers it appropriate, having had regard to the matters specified in subsection (4), he or she may recommend to Dáil Éireann that subsection (1) shall be applied, or shall no longer apply, to any particular public body to the extent specified in the order. Any such recommendation must be ratified by Dáil vote.”.
I move amendment No. 28:
In page 16, to delete lines 34 to 37 and substitute the following:The amendment is in the same vein as No. 27, which has fallen. It is a minor issue but it comes back to the exempt bodies. Amendment No. 28 essentially relates to a subsidiary of a public body or where it is unclear whether a body is exempt and No. 27 moves bodies to the exempt list. I thought it would be prudent for the Dáil to have the final say. If it is a recommendation of the Minister, then the Government of the day will carry the vote. There is much good work and welcome changes in the Bill and exempting a body is a serious thing to do. There may be good reasons for so doing but without amendment No. 27, the Minister of the day can essentially add to the list without Dáil oversight. The purpose of amendment No. 28 relates to cases of disagreement where the Minister of the day will decide. It occurred to me that the Information Commissioner would be the right person to decide rather than the Minister.
“(5) Where a dispute arises as to whether subsection (1) applies, or as the conditions arising by virtue of that subsection, the dispute shall be submitted to the Commissioner, whose determination shall be binding.”.
There is slight confusion. The measure does not allow the Minister to prescribe new bodies; it is to provide a mechanism for bodies that are automatically captured but who might feel they should not be subject to freedom of information and who wish to dispute the case. Both sections 6(5) and 7(5) provide for the Minister to be the final arbiter in a dispute between the Information Commissioner and a public body as to whether the body is covered by the Freedom of Information Act. As the Information Commissioner would obviously be a party to the dispute, he or she could not be the final arbiter in a dispute. If he or she says the body should be included and the body disagrees, he or she cannot say he or she is the deciding authority and provide his or her view. It is better for the Minister, who is the responsible constitutional officer for the Act, to be the decider in such a case. The alternative would be to make it a matter for the courts, but I do not think that is necessary.
Yes, or that for whatever reason it is not providing certain information under freedom of information, it is the Information Commissioner who essentially has the final say and insists that citizen X is provided with the information. At the moment a body can have a dispute with the Information Commissioner on the provision of information and under law the Information Commissioner can say that he or she is making a binding ruling. The Office of the Information Commissioner is in dispute with bodies all the time and essentially has the final say. Is there any reason it should not have the final say in determining whether a body is in or out?
The Deputy is confusing two different issues again. This is simply a provision where the basic fact of whether a body is included or not is in dispute and the dispute is between the body which says it is not covered and the Information Commissioner. I am providing the matter should be determined by the Minister. It mirrors the situation set out in the Ombudsman legislation, which is the same officer, at the suggestion of the then Ombudsman herself.
I move amendment No. 29:
In page 16, to delete line 41, and in page 17, to delete lines 1 to 14.I am sorry, I was mixing up my amendments. Amendment No. 29 is very similar to No. 27. No. 27 says a Minister may put a body on the exempt list and amendment No. 29 is about the Minister putting part of a public body on the exempt list. As with amendment No. 27, it is a serious thing to do, to say to a part of a public sector body that it is completely free of freedom of information. It seemed to me that because it is a serious matter, a Dáil vote would provide an extra safety guard against a future Minister making decisions. My understanding of the legislation is that such decisions are not just instigated by the Minister for Public Expenditure and Reform. The Minister for Transport, Tourism and Sport, for example, could go to the Minister for Public Expenditure and Reform and ask that a certain part of CIE would be exempt. We spoke earlier about school transport. A future Minister for Public Expenditure and Reform could agree to the request. We could begin to see, through decisions that do not have any Dáil oversight, the gradual erosion of freedom of information as an increasing number of bodies are potentially put outside it. A reasonable safety valve to introduce would be to ratify such decisions by Dáil vote.
Again, the Deputy's intention is captured by the amendment I propose. He should examine amendments Nos. 33 and 34. The procedure for the Minister to be able to act in this way is important because as Deputy Donnelly said, nothing is set in stone. The Deputy wants Dáil oversight of decisions. My amendments Nos. 33 and 34 to the relevant sections, 6 and 7, require a positive resolution of both Houses of the Oireachtas before they come into effect. Any such decision must be laid formally before this House and the other House and it will require a formal acquiescence of the House.
I move amendment No. 30:
In page 17, line 4, after “entity” to insert “or a subsidiary of, or a body directly or indirectly controlled by, such an entity”.
I move amendment No. 32:
In page 17, to delete lines 8 to 14 and substitute the following:“(b) An order made under paragraph (a) may—(i) specify the inclusion or exclusion of elements of—(I) the entity concerned, orand
(II) a subsidiary of, or a body directly or indirectly controlled by, the entity concerned,
(ii) specify a date, which shall not be a date later than 6 months from the date of such order, on which the entity, subsidiary, body, or element of a body, concerned shall become a public body.”.
I move amendment No. 33:
In page 17, between lines 18 and 19, to insert the following:
“(9) Where an order is proposed to be made under this section, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.
(10) Where, after the passing of this Act, a company (within the meaning of the Companies Acts), or other body, becomes a public body within the meaning of section 6(1) (other than by virtue of an order made under subsection (3)(b) or (7)(a)), the obligations under this Act shall apply to that company or body, on and from a date that is not later than 6 months after it becomes a public body under this Act other than where the Minister makes an order under subsection (3)(a) declaring that subsection (1) shall not apply, in whole or in part, to the company or body concerned.”.
I move amendment No. 34:
In page 18, between lines 21 and 22, to insert the following:
“(8) Where an order is proposed to be made under this section, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.
(9) An order made under subsection (1) may specify a date, which shall not be a date later than 6 months from the date of such order, on which the entity concerned shall become a prescribed body.”.
I move amendment No. 35:
In page 19, to delete lines 16 to 20 and substitute the following:
“(2) A publication scheme shall include—(a) the classes of information that the FOI body has published or intends to publish,
(b) the terms under which it will make such information available and, where the material is not available without charge, the charge,
(c) a general description of its structure and organisation, functions, powers and duties, any services it provides for the public and the procedures by which any such services may be availed of by the public,
(d) a general description of the classes of records held by the body concerned, giving such particulars as are reasonably necessary to facilitate the exercise of the right of access,
(e) the—(i) rules, procedures, practices, guidelines and interpretations used by the body, and(f) appropriate information in relation to the manner or intended manner of administration of any such enactment or scheme, referred to in paragraph (e),
(ii) any precedents kept by the body, for the purposes of decisions, determinations or recommendations, under or for the purposes of any enactment or scheme administered by the body with respect to rights, privileges, benefits, obligations, penalties or other sanctions to which members of the public are or may be entitled or subject under the enactment or scheme,
(g) the names and designations of the members of the staff of the body responsible for carrying out the arrangements referred to in paragraphs (c) and (d) (unless the head of the body concerned reasonably believes that publication of that information could threaten the physical safety or well-being of the persons),
(h) the address or addresses at which requests under section 12 or applications under section 9 or 10 should be given,
(i) appropriate information concerning—(i) any rights of review or appeal in respect of decisions made by the body (including rights of review and appeal under this Act), andand
(ii) the procedure governing the exercise of those rights and any time limits governing such exercise,
(j) information in relation to such other matters (if any) as may be prescribed.”.
I move amendment No. 39:
In page 24, line 35, to delete “by the FOI body concerned”.It is simply to correct a drafting error. Clearly the legislation is designed to give access to records created on or after the effective date, regardless of whether they were created by the freedom of information body concerned.
I move amendment No. 41:
In page 26, line 13, after “writing” to insert “, or electronically”.It is a very simple amendment and I hope the Minister will not have a problem with it. It relates to the section where we are getting into the meat of what the Act is about, having gone through the various definitions. This is the first section dealing with a request for access to records under the Act. Section 12 states that a person who wishes to exercise their right of access shall make a request in writing or in other such form. I want to insert the word "or electronically" after the word "writing" because other such forms could include over the telephone but it is not specific that it includes an electronic request. I ask that the facility would be clear in the legislation. Given the times we are in, we should make specific provision for electronic communications.
We dealt with the matter on Committee Stage. Writing captures the aim of the Deputy. It might seem like a simple thing for him to include "or electronically".
The word "writing" is defined in Part 1 of the Schedule to the Interpretation Act 2005 and it includes printing, typewriting, lithography, photography, and other modes of representing or reproducing words in visible form, and any information kept in a non-legible form, whether stored electronically or otherwise, which is capable by any means of being reproduced in a legible form. To be comprehensive the word "writing" must remain because it is captured so exhaustively in the Interpretation Act.
I move amendment No. 42:
In page 27, line 20, to delete “makes an FOI request” and substitute “makes a request”.These are all minor technical amendments suggested by the Office of the Parliamentary Counsel. They address typographical issues such as substituting “makes a request” for “makes an FOI request”. These are textual changes to fine-tune the Bill.
I move amendment No. 43:
In page 27, to delete lines 33 and 34.This is the most substantial body of amendments as the section relating to fees caused serious debate. I withdrew my amendments on FOI fees on Committee Stage and said I would give the matter deep consideration because a coherent and strong case was made. I emphasised that I had listened closely to the views expressed by members of the committee on the amendments they tabled and that I would reflect carefully in advance of Report Stage on how best to address the issue of FOI fees and other matters. In that context, I asked my officials to undertake a detailed assessment of the case for reform of the FOI fees regime and a paper has been produced on the subject that I have made available to the various party spokespersons. I hope the paper was of use. The assessment was approached in the context of the Government's commitment to securing substantially greater openness, transparency and accountability in public administration.
On the basis of this assessment, I have decided that a complete reform of the FOI fees regime is required reflecting elements of good practice in other vanguard FOI jurisdictions such as Australia and the UK. The Government has approved this reform and it will see changes including the removal of the application fee, the setting of caps on search, retrieval and copying fees, the provision of some search, retrieval and copying time free of charge and the proposed provision of information in simple administrative form outside of FOI. This will be achieved through the more proactive publication of information and open data policies as well as other access regimes, such as access to environmental information and the EU re-use of public sector information directive.
In summary, the amendments relating to fees that I am proposing to the FOI Bill will make a significant difference. The amendments will see the abolition of the €15 application fee. I have heard it said in recent days that my goal is to reduce the fee to zero so that another Minister could later increase it but this is not the case. I have removed the power from the Bill to set an application fee so any re-introduction of the application fee will require primary legislation. I will introduce a cap of €500, which equates to approximately 25 hours' work, on the amount of search, retrieval and copying fees that can be charged and a further upper limit on estimated search, retrieval and copying fees at €700, or approximately 35 hours' work. Above this limit an FOI body could refuse to process a request, unless the requester is prepared to refine the request to bring the search, retrieval and copying fees below the limit. This is best practice in the UK and I met members of the UK authorities, including the Minister responsible, who believe it works very well. Rather than deal with a blunderbuss application that may take up to 50 hours to deal with, they ask the requester to break up the request into focussed areas.
A minimum threshold of €100, which equates to approximately five hours' work, below which no search, retrieval and copying fees will be charged will be introduced. In other words, there is no application fee and up to five hours of FOI search and retrieval work will be done for free. The provision relating to deposits will be retained. The Bill will introduce a definition to ensure that there is clarity on the activities for which search, retrieval and copying fees can be applied. This will be fully in line with the intention of the original legislation which includes all activities carried out leading up to the finalisation of a file containing the records for review by the decision maker prior to release. The amendments will also see the reduction of costs for internal reviews, as I set out, and a substantial reduction in the cost of appeals to the Information Commissioner has been agreed by the Government from the outset. In accordance with normal practice, the actual monetary amounts in each category will be set by way of ministerial order. The changes to the fees regime are dramatic and go a long way to take in the strong views expressed by Opposition Members and external groups. I listened carefully to the presentations made at the open Government forum and I spoke to a number of experts in FOI best practice around the globe to ensure Ireland can be an exemplar on this.
Some will argue this regime will put too much pressure on an over-burdened administrative system because we have reduced numbers but I feel it is appropriate and I am happy the Government has endorsed my proposals.
Like the other Deputies, I acknowledge the work done by the Minister and the fact that he reviewed a substantial part of the legislation that was debated on Committee Stage. The review was very useful and I thank the Minister and his officials. I can see that many of the arguments made by me and by other Opposition Deputies are reflected in these amendments and I welcome this fact. The removal of the upfront application fee is particularly welcome and the reductions are very good too. The table provided was very useful and shows that five to six hours are entirely free, which covers most FOI requests.
I acknowledge that this is a huge and very welcome step forward but will make some observations in the spirit of improving the legislation further.
The table on page 29 of the report shows there is a severe step change in the fees that can be charged. The first five or six hours are free but if a requester's application takes seven hours to process, he or she is to be charged for all seven hours. It is peculiar that the table indicates a charge of zero for each of the first few hours but then there is a sudden leap to €146 at the point of the seventh hour. Perhaps the ministerial order could allow that the first five hours are free and the hourly charge begins at the sixth hour with a charge for one hour. It makes more sense than suddenly charging for all seven hours as the step change is strange otherwise.
Similarly, when the table goes from 35 to 40 hours, the €500 cap ceases. My reading of the proposed amendment says the first five or six hours are free but if an application takes seven hours to process the charge is for all seven hours and the first five hours are no longer free. If this could be changed, that would be great. There is a linear relationship between fees charged and time taken after this point until fees flat-line at €500. However, if my understanding of the amendments is correct, when the 40-hour point is reached a body can refuse a request because it involves too much work.
It can state that maybe it will still do it, but if it does there will be another step-change. This does not seem the most helpful of profiles. If there is to be a charging regime I wonder whether it should be less punitive, particularly at the lower level., such as at seven hours where one moves from a zero charge to a €150 charge.
When the Minister is putting together the ministerial order will he consider the charge per hour? I worked this out to be €20.95 or €21 an hour. I worked backwards to this being the equivalent of an annualised amount of €44,000. The report makes the point this is approximately half the cost of recovery and that the real cost incurred is approximately twice this. This suggests an annualised salary per hour worked of €88,000, which seems very high. After the five free hours, hour 6 should not cost one-six hours but one hour, and perhaps the €21 per hour is punitive. It feels very high. Will the Minister consider these points?
I also have an observation to make on a prevailing mindset and perhaps nothing needs to change. I thought the report was very useful but its prevailing mindset is that responding to freedom of information requests is not a primary role of the State in and of itself. This needs to change. The last sentence of paragraph 7.7 states, "This opportunity cost relates to the time that public servants spend in dealing with FOI requests rather than in carrying out their primary role and responsibilities in relation to the provision of public services". I would very much like to see this mindset changed and reflected in a less expensive and friendlier charging regime, which does not view responding to freedom of information requests as something which distracts public servants from their primary role but as part of their primary role. In a good healthy transparent government and public sector this should be seen as part and parcel of the primary role.
I again emphasise these issues are around the edges. The changes being made are excellent. My questions are whether the step-change can be examined, whether a charge of €21 an hour is punitive and whether anything can be done to change the mindset regarding providing the public with information being part of one of the many primary roles of the Government.
This group of amendments substantially deals with fees. I accept some improvements have been made by the Minister since Committee Stage, and the improvements he intends to make when the draft statutory instrument is brought before the House for discussion should be helpful. I concur with Deputy Donnelly and I wish to highlight some issues which I ask the Minister to clarify when he responds.
I found the legislation as originally drafted, on which we were working when we submitted our amendments after Committee Stage, unclear. Some time ago the Minister gave us a draft text he proposed to introduce and we have had an opportunity to propose amendments to it. I did so but they have been ruled out of order. At present, section 27 states, "Subject to this section, a fee of such amount as may be appropriate having regard to this section shall be charged". It made specific provision for a charge. The statutory instrument specifies a €15 charge and people felt this charge could be zero. I do not know who stated this, I could have said it myself. It sounds like something I would have said, that it seemed as though the charge was being reduced to zero but not necessarily being abolished. The amendment tabled by the Minister will mean the section will read, "Such amount as may be appropriate having regard to the provisions of this section shall be charged". The first line makes it look as though section 27 allows for fees which "shall be charged by the FOI body concerned under this subsection and paid by the requester concerned to the body in respect of the grant of an FOI request".
I am speaking about the first paragraph of amendment No. 56 tabled by the Minister which refers to section 27. I do not think there is a problem with it. At present, section 27 states, "Subject to this section, a fee of such amount as may be appropriate having regard to this section shall be charged". The Minister is changing this and has come here with an entirely new section 27 which begins, "Such amount as may be appropriate having regard to the provisions of this section shall be charged by the FOI body concerned under this subsection and paid by the requester concerned to the body in respect of the grant of an FOI request." People could read this-----
I am coming to it in fairness, but I am doing it in sequence. I will agree with the Minister but I want to go through the process. People reading the first sentence will see provision is made in the legislation-----
I have read the next sentence and I will quote it. People tend to read only the headlines. People reading the first line of the new section will see a reference to fees which shall be paid in respect of the grant of the FOI request. Somebody who took a preliminary glance at this could be forgiven for thinking-----
What if they only read the first sentence? In most walks of life people read only the first sentence in most articles of most newspapers. Not everyone gets to read to the end. The section makes provision for a fee. We now come to the next sentence, which the Minister has pointed out and which I have underlined. It states, "The amount of a charge under this subsection shall be equal to the estimated cost of the search for and retrieval and copying of the record concerned by the FOI body concerned for the requester." This sentence states the only fee which can be charged is the search and retrieval fee. I take this to mean there cannot be an application fee.
That is good and many people called for it. It would be churlish of people not to acknowledge the second sentence when they get to it.
I tabled an amendment to the section before this, but related to this section, which was ruled out of order. I proposed there should be no application fee but it was ruled out of order because only the Minister can make such a provision. I also proposed a maximum amount of €500 and no fee for the first ten hours. The Minister has proposed five hours but I wanted to change this. It was ruled out of order because it was a potential charge on the Exchequer.
The last subsection - it is subsection (14) - proposed in amendment No. 56 states, "An FOI body shall endeavour to establish a facility by which payment or refund of any fees due under this Act may be made electronically." I am happy with this. I tabled an amendment but was told it would be a cost to the Exchequer. I thought this was interesting and decided to put the point to the Minister in the Chamber rather than arguing with the Bills Office. It made the ruling and I will not argue. I hope that in the public service paying something electronically rather than manually would be a saving for the Exchequer and not a charge on the Exchequer. In conversation this morning with the Bills Office I stated that to my mind, and, I suspect, the mind of the Minister responsible, paying something electronically should be a more economical option, but I was told the system would have to be changed which could cost money. I stated the change to the system would save money.
There is no point in arguing any further, but it is interesting. The Minister is responsible for public expenditure and he is introducing electronic payments and allowing people to deal by electronic means with a variety of State organisations. We want to encourage that system here from the Opposition side. This establishment, the Oireachtas, has taken the view that it is a charge on the Exchequer because there could be a cost in introducing a more efficient way of doing something compared with not trying to introduce a new system. I found it extraordinary that my amendment was ruled out on that basis.
As we are on Report Stage we do not have a great opportunity to speak and can only make a short second contribution. We can argue about the search and retrieval fees. I published a Private Members' Bill on this topic 18 months or two years ago. I specified a cap of €500 after carrying out a full trawl of all Departments. I am sure the Minister has seen that - responses to a series of questions confirmed much the same thing. It is amazing what comes out of the woodwork and people with an interest started e-mailing me stating that the Department of Agriculture, Food and Marine had set a maximum fee but they were charged more. We will not argue about the exact accuracy, but the general picture was fairly clear across Departments. That is why I wanted a cap on the search and retrieval fees, as the Minister has done here, which I welcome. The Minister has addressed most of the issues we highlighted. Later in the debate we will come to a few of them relating to partially included bodies etc.
I want to take the Minister through subsection (4) which troubles me a bit. I thought personal information was sacred under the Freedom of Information Act. Personal information is supposed to be free and there was never even an application fee for personal information. The new subsection (4) states: "Where the record or records concerned contains or contain only personal information relating to the requester concerned the charge under subsection (1)shall not be made, unless the grant concerned relates to a significant number of records". We are now putting such a provision into legislation, perhaps for the first time. It goes against the spirit of what the Minister wants.
On Committee Stage I gave the example of medical records. This amendment now provides that if a body has a significant number of personal records relating to the requestor, the requestor may be charged. I thought the principle was that personal information was to be free - not just free from the application fee, but free to get the information. This now facilitates the charging of a fee where the grant "relates to a significant number of records, and in considering whether or not such a charge shall be made, [there is an option not to charge it but it does not mean that public servants across the board will not] the means of the requester shall be taken into account." I believe I raised this issue on Committee Stage.
How is the FOI officer in Carrick-on-Shannon in the Department of Social Protection meant to know the means of everybody in the country? Is the decision maker meant to carry out a means test? This subsection has opened up an issue.
The Minister is changing it. He is saying it was butchered in the past, but he is coming back to un-butcher it now. I just do not understand why he did not take this out. This provision jars in the case of a person seeking his or her own medical records. Many people have many medical issues and there can be substantial records. They could be on CD or other format. There was a time when patients went from the X-ray department carrying a big brown envelope, but now they get a disk to bring to the consultant in the room up the road, depending on the hospital, whether it is public or private as the case may be.
That is bad enough. While I accept there is provision for it not to be charged, it states that the person making the decision may take the means of the requestor into account. I accept it should be relatively easy to establish the means of a person in receipt of a social welfare payment because the deciding officer is entitled to conclude that if the requestor is in receipt of a payment from the Department of Social Protection his or her means have already been assessed and the Government is generally happy with that. However, for many people it is unfair that they should be charged for personal information. The Minister has done quite a good job in making amendments to the legislation, including abolishing the application fee. However, there was never an application fee for personal information. The Minister is now abolishing the application fee for non-personal information, but is still providing that a person seeking personal information may be charged certain retrieval fees, which jars with-----
I know, but we are here changing the legislation. We are here to make the changes and not to copperfasten what was done in 1997. There have been many changes in this legislation. Before we come to decide on this amendment perhaps the Minister can take advice as to whether that subsection could be deleted. I do not know if he can do that. He cannot walk cleanly from this House today and say he has abolished fees for personal information. He is actually copperfastening fees for search and retrieval of personal information, which should not have been there to start with because the application was always free. So we are abolishing the application fee for non-personal information but we are copperfastening a fee for personal information search and retrieval if there are a significant number of records. I accept there is a method there for the deciding officer to assess the means of the requestor, which is arbitrary and unfair, and should not be there. Introducing a means test for this is not the way to go about it.
I ask the Minister to drop that subsection, which jars with what we are doing here. The section runs to two and a half pages compared with the previous section. On the previous day we discussed a measure covering the case where different sections in a Department had to deal with a request. Where was that? Has it been dropped or is it elsewhere in the Bill? I do not see it here - I presume it is not here. I am afraid in ten minutes time I might find it in there.
It is not there now.
On Committee Stage I highlighted the case of a person who wanted to get their full personal file from the Department of Social Protection relating to a disability invalidity payment. The person was told their request had to go to two different sections - to the means-testing section and to the medical section in the Department - and that was construed internally as two different requests. I did not think it should be, but that is how some people do it. It is all the more reason for having an exact code of practice. We are back to that again and we are happy to bring that in here.
Those are some general observations. I am pleased with the search and retrieval fees. We could argue about the number of hours here or there, but I agree with the gist of the Minister's approach. When the Minister comes back with the draft statutory instrument, I presume some of that could even be teased out at that stage. It is good that the Minister has specified in subsection (1) that the only charge will relate to the cost of the search for, and retrieval and copying of the record concerned. However, subsection (4) is of concern.
I acknowledge the significant changes that have been made in this section by amendment No. 56. Obviously that was the area over which people were most exercised and concerned. In order to change behaviour there must be a way to change behaviour.
The Minister referred to the concerns that might arise regarding the additional administrative burden but that can be reduced by people taking a different approach, namely, the open data approach the Minister is trying to drive. I believe it will be helpful in effecting that cultural change and not only is the fee reduction positive but the cultural change it will drive will also be positive. While acknowledging the point made by Deputy Donnelly on the tapering between five hours and seven hours and more, it is positive that the first five hours will be free. Overall, I wish to acknowledge all these significant changes.
However, there was one point on which I wish to ask a question, which is that the new wording allows for different public bodies to set different overall ceilings. It is absolutely critical to have clarity and understanding, that some level of control will be applied in this regard and that it will be quite transparent. The Minister might revert to Members on how this will be calculated and as to what kind of control or culture will be involved in this particular aspect, because it obviously could become a significant problem.
I will also be brief and will cut to the chase as Members discussed this issue at length on Committee Stage. I am opposed to the charging of any fees in respect of freedom of information, FOI, requests. On Committee Stage, it was established that the charging of fees is not about cost recovery and the report the Minister compiled, which I acknowledge, makes that point again. The Minister is not charging to cover the costs as that would not be possible and nor - I imagine - would it be desirable in the Minister's mind. The question then arises as to why charge and what is the effect of charging. Members are aware that when charges and fees are levied at whatever point, it acts as a disincentive for people to make freedom of information requests. I acknowledge that from the Minister's perspective, he has changed radically the method by which he proposes to charge but, none the less, the regime he describes contains charges. This is entirely the wrong direction to take and the correct position is not to charge either an upfront fee or a search or retrieval fee. I revert to an earlier part of today's debate when the Minister referred to open data and to a system whereby datasets and a culture in which data are freely and routinely made available. I agree it is necessary to get to that point and when that point is reached, it will render the freedom of information legislation, if not redundant, then certainly not the key piece of legislative architecture in this regime.
There is a reluctance within the system to share or make available information and the objective of everything Members must do is to ease the passage of information release. I have a principled opposition to the charging of fees, of which the Minister is aware as we debated this point long and hard on Committee Stage. The Minister has come a substantial way, in his own terms, by abolishing the €15 fee and so on. I ask him to go a little bit further and instead of inserting a lengthy amendment, to simply dispense with the notion of fees entirely. While I could go on, the Minister will be relieved that I will not do so this time. I could go through the details of my concerns on the amendment as drafted but the bottom line is that I do not believe in charging fees for freedom of information requests either upfront or through search and retrieval fees.
I thank the Deputies for their comments, with which I will deal seriatim. I thank Deputy Donnelly for welcoming, in the main, the amendments I have tabled. He referred to the step change and it is by design, as having discussed this matter with the United Kingdom in particular, the idea is to make it much more user-friendly for freedom of information. To be blunt, I do not want people to make really complicated and burdensome FOI requests that will take between 40 and 70 hours of work. It would be much better if they made focused requests taking five hours on specific sets they seek. The entire idea is to encourage this and that is why the step change or tapering to which the Deputy has referred is included. I believe it is the right approach to take and that certainly is the information and advice I have had internationally. On the actual costs, the hourly cost, at €21, has not changed since 1997. The sum of €20.95 is the equivalent of what it cost in pounds in 1997. For Members' information, the equivalent charge in the United Kingdom at present is £25 sterling per hour. Consequently, I believe this is reasonable and I have not sought to increase the cost from 1997 levels.
According to the notes I made, Deputy Sean Fleming referred to replication of the 1997 Act. However, I cannot recall precisely what was the point. What was replicated from the 1997 Act?
-----replicated. I cannot remember what the point was but I will come back to it. The Deputy made two further points, one of which pertained to the proposed section 27(4), which concerns personal information. That provision is mirroring the 1997 Act and it is a matter of reasonableness. All personal information will be free, by and large. This has been the position since 1997 but there must be some barrier in respect of reasonableness. For example, were one to request every item of information the public service possesses about oneself, there could be tens of thousands of items of information. Is it reasonable to make such a request and to get every Department and agency of the State beavering away on that? There must be an element of reasonableness in this regard. I am advised - my Department trawled through this - that this provision is seldom used. It is just for when someone makes an extraordinary request. I have seen requests from people in respect of genealogical pursuits, for example, where they basically wanted agencies of the State to draw up a family tree for them by going through every record in their family line going back 500 years. I am advised I should retain this provision simply to have some semblance of reasonableness with regard to personal information. However, by and large, it would be a rare exception to have any charge at all for personal information. Moreover, where it is charged, it will only be an actual cost of duplicating and finding that information. As for the electronic payment question, that certainly is what I intend to do and it will be part of the code of conduct. It will not be a requirement but will be where people wish to do it electronically and this obviously is what the Government is migrating towards. I still cannot remember what was the point I was trying to make with regard to the 1997 Act in response to the Deputy's first point, although it might come back to me.
Deputy Catherine Murphy mentioned cultural change and I agree with her entirely. It is part of a suite of measures in which the Government seeks change. I have stated all along that having a common code of practice, having a requirement for trained FOI officers and having a consistency regarding FOI across the public service is almost as important as the content of the legislation because then, everybody will know what is expected of him or her. Moreover, there will be a common scrutiny of freedom of information, with a central FOI unit within my Department being responsible for that oversight. This will be very important and I agree with the Deputy that the aim is to have a mindset of openness. This goes to the point made ultimately by Deputy McDonald on moving towards open data and why I would have anything here. One must get to that point and must have systems. I already have been talking to the chief information officers about common systems to publish datasets, in order that information is made available more freely. Deputy Murphy also mentioned the different level of ceilings.
This approach mirrors the position in the United Kingdom where a lower cap applies in respect of the local government system than in respect of the central government system.
I thank the Minister for his reply. I take his point on the need to split requests into parcels to ensure the work involved for each parcel does not exceed five hours. It is odd that in the case of a person whose request involves seven hours' work one would provide five hours of work free of charge and impose a fee of €40 for the remaining two hours. Would the requester not be asked to split the request to ensure the work involved in each part did not exceed five hours? The Minister indicated that discussions took place with the United Kingdom on this issue. While I do not agree with charging any fees, if they are to apply, the sixth hour should be €20 and so forth.
On the charge of €21 per hour, as per the report on the issue, the purpose of the fees regime is to strike a balance between providing reasonable access to public information and avoiding vexatious or lazy requests. I refer, for example, to a request for information that involves a civil servant clocking up 40 hours of work when the information was already available in the public domain. A request requiring 20 hours' work would incur a charge of €420. For many citizens, this does not strike a balance but indicates to them that they are not wealthy enough to submit their request. The counter-argument is that a person with such a request should break it up into four parcels of five hours' work as it would then be free of charge. Will the Minister confirm that a citizen who broke down a 20 hour request into four equal parcels would not incur a fee? If that were the case, it would go some way towards addressing the issue. Is it the Minister's view that a 20 hour request nominally costing €420 would be free if it were split into four bundles of five hours' work?
The Minister did not respond to my question, although I know in any event what would be his response. I draw his attention to section 15, which allows a head to refuse to grant a freedom of information request on administrative grounds. Among other factors, an administrative refusal may be made where "in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned". The system has an in-built check for dealing with voluminous requests, as they were described by the Minister. I will not labour the point as I have made my position clear on the matter.
I wanted to finish my reply to Deputy Catherine Murphy but she has left the Chamber. She made a point about different ceilings. Deputies will be aware that it is my intention to extend the scope of the freedom of information regime to a much wider group of organisations, including bodies that receive significant sums from the Exchequer, some of which will be charities. It may be necessary to have a lower threshold for such charities. I need to discuss with representatives of the Irish Wheelchair Association, the Cheshire Foundation, the Multiple Sclerosis Society of Ireland and other organisations what would be an appropriate regime because these bodies will be concerned about freedom of information legislation applying to them. I wish to be able to give them reassurance and to bring them along the path to freedom of information. I have covered most of the other points.
While one can be theoretical about this issue, in practice there should be open dialogue between the requester and requested body. The latter should, if necessary, inform a requester that his or her request involves a great deal of work and ask precisely what information is sought. Good organisations do this already. The requester can then detail what is the net information he or she seeks to ensure it is provided for free. The reason for providing a free moiety, after which a fee will apply, is to incentivise both parties to take this approach.
I move amendment No. 49:
In page 30, to delete lines 2 to 7.While I am prepared to speak to both of them, amendments Nos. 49 and 53 are completely different. I am concerned that section 15 provides an opt-out to heads who may not wish to comply with the spirit of the legislation. Section 15(1)(c) basically allows a head to refuse a request on the basis that it involves too much work. Perhaps the Minister will publish guidelines on what would be considered an unreasonable request. I understand other Deputies raised this issue.
Amendment No. 53 is unrelated to that issue. It provides that where a head refuses a request on the basis that the information sought is already in the public domain, he or she must direct the requester to the location of the relevant information. This is a simple requirement, which could be met by providing a hyperlink. As such, it places a simple and non-onerous burden of proof on any head who refuses a request because the information sought is already in the public domain.
Amendments Nos. 49 and 51 seek to delete or amend the right of a public body to refuse a freedom of information request on certain administrative grounds. Amendment No. 49, which has been tabled by Deputy Donnelly, proposes to delete the provision which allows a body to refuse a request where the processing of the request would be likely to cause a substantial and unreasonable interference or disruption of work. I understand the logic of the Deputy's argument as it is reasonable to regard the processing of a request as a person's work, rather than a disruption of his or her work.
In view of my decision to remove up-front fees and return to the architecture of the original Act of 1997, it is necessary to provide a guard against unreasonableness. Nevertheless, I accept the Deputy's point, which can be captured in the code of conduct. We have published a draft code, which I am sure Deputies have had an opportunity to read.
I am also sympathetic to the intention behind Deputy McDonald's proposal to allow for the publication of records relating to a request that was refused on the grounds that it would cause a substantial and unreasonable interference in the work of the body in question.
However, I consider that the provision currently in the Bill is designed to deal with that particular type of request. The provision envisaged in the amendment would cause a substantial volume of work that would suck in personnel and pull them away from other important work, not only at the time of the request but at any time. Whether it is now or in three months' time it makes no difference. If it is a fact now, it will also be a fact in three months' time. On that basis I do not accept the proposal that it should be published in six months.
I will not go through the other points I was going to make because my views on them are already on the public record.
The Minister is right - all of our views on this matter have been thoroughly aired. The idea that a request would be rejected because the head says it is "frivolous or vexatious, or forms part of a pattern of manifestly unreasonable requests", is open to subjective calls and judgments.
I appreciate all of that. I do not think it is wise to have this in the legislation. I already cited section 15 which addresses the issue of administrative burden. It is dangerous, however, to make calls like that. I will give a real-life example of it. A number of survivors of the Bethany Home, and one in particular, made numerous FOI requests. I am told they were dismissed by the Department of Justice and Equality because they were considered to be a nuisance and constant callers. There is no doubt that these people were persistent in their pursuit of information, but time has proven just how correct they were to be persistent and to use pester-power in respect of these matters.
I am unhappy with the language in the section, such as "frivolous", "vexatious" and "manifestly unreasonable", but according to whom? I am also unhappy with allowing somebody that scope for decision. I know there is a capacity to appeal but in section 15 the Minister has already built in a sufficient check or test in respect of any FOI requests that may come forward. I have said all of this to the Minister before, so there he has it.
I wonder if I can get the Minister's reaction to amendment No. 53. It gives the example of where a head refuses to grant a request because the information is already in the public domain. This would oblige the relevant authorities to indicate where it is in the public domain. I wonder if the Minister might accept that.
That is what I have just said. As regards Deputy McDonald's point, the original 1997 Act used the term "frivolous or vexatious", which is often used in legislation. I have come across cases, although rare, when somebody takes a down on a public official and says, "I am going to put in FOI requests every day about everything that you do". I have seen it happen. There has to be some blockage because, short of saying that such an approach is intimidation or besetting, it is not an appropriate use of FOI. We therefore need to have some safeguarding system within the code, especially when there is no cost involved in the regime I am proposing.
I move amendment No. 53:
In page 30, between lines 36 and 37, to insert the following:“(5) Where a head refuses to grant a request, and—(a) the information is already in the public domain,
(b) or publication of the record is required by law and is intended to be effected not later than 12 weeks after the receipt of the request by the head,
(c) or the FOI body intends to publish the record and such publication is intended to be effected not later than 6 weeks after the receipt of the request by the head, the head must provide the requester with details of when and where the information is, or will be available.”.
I move amendment No. 54:
In page 32, to delete lines 30 to 39.We spent some time talking about this on Committee Stage. I was referring to specific queries, language, sequels and various other things. I have now re-examined the matter. Section 4 concerns when an FOI request is for information contained electronically across numerous devices. My concern is that this potentially provides some sort of opt-out or lack of keeping up with technological advancements. In lay person's language this concerns someone seeking a piece of information that may be on eight different PCs. Under this section, one is obliged to use whatever search and retrieval tools were available at the time. At that time, it may be that one had to log into each PC, which might be in eight different locations around the country. Someone might say that too much work is involved or else they will charge for the request because it would entail a lot of work. Since then, they may have been able to access all eight PCs from a centralised location. Under this subsection, however, it says they need only seek the information using whatever search tools existed at the time the information was created. I am concerned that, albeit unintentionally, it is locking in outdated technological search tools.
If I am wrong, what problem is this subsection trying to solve? Can the Minister provide an example? I am unclear as to why electronic data are being treated differently in this way.
It is on the basis of practicality. I consider the deletion of the section I inserted on Committee Stage as being a retrograde step. We had this discussion on Committee Stage. I accepted that the wording of section 17(4), published originally in the Bill in July 2013, gave an erroneous impression that access to FOI records concerning electronic recording was being somewhat restricted. Far from causing a restriction, that is not my intention. The Bill contains a number of provisions to take account of technological advances. To clarify, that includes electronic records and encompasses all databases.
In response to the confusion and the debate we had caused by the original wording of subsection 17(4), I published the alternative wording for that section on Committee Stage. It was designed to explain the matter with more clarity. That wording was accepted and is now part of the Bill. Section 17(4) requires bodies to take reasonable steps to search for and extract data whether or not that would result in the creation of a new record. Previously, there was confusion as to whether the extraction of data from electronic sources, brought together in one record, would create a new record and would not therefore be permitted under the Act. The purpose of section 17(4) is to remove that uncertainty. It is a positive development to ensure greater access to a variety of data - held extraneously or differently on a variety of databases - which can be amalgamated into a single new data file and be covered under the Act. That is a great advance and I hope it meets the concerns expressed by the Deputy.
I move amendment No. 56:
In page 43, to delete lines 3 to 41, to delete page 44, and in page 45, to delete lines 1 to 17 and substitute the following:“Fees and charges
27.(1) Such amount as may be appropriate having regard to the provisions of this section shall be charged by the FOI body concerned under this subsection and paid by the requester concerned to the body in respect of the grant of an FOI request. The amount of a charge under this subsection shall be equal to the estimated cost of the search for and retrieval and copying of the record concerned by the FOI body concerned for the requester.
(2) For the purposes of subsection (1)“search for and retrieval” includes time spent by the FOI body in --(a) determining whether it holds the information requested,(3) For the purposes ofsubsection (1)--
(b) locating the information or documents containing the information,
(c) retrieving such information or documents,
(d) extracting the information from the files, documents, electronic or other information sources containing both it and other material not relevant to the request, and
(e) preparing a schedule specifying the records for consideration for release.(a) the amount of the cost of the search for and retrieval of a record shall be calculated at the rate of such amount per hour as stands prescribed for the time being in respect of the time that was spent, or ought, in the opinion of the head concerned, to have been spent, by each person concerned in carrying out the search and retrieval efficiently,(4) Where the record or records concerned contains or contain only personal information relating to the requester concerned the charge undersubsection (1) shall not be made, unless the grant concerned relates to a significant number of records, and in considering whether or not such a charge shall be made, the means of the requester shall be taken into account.
(b) the amount of the cost of the copying of a record shall not exceed such amount (if any) as stands prescribed for the time being, and the determination of that amount shall be in compliance with any provisions standing prescribed for the time being in relation to such determination,
(c) subject to subsection (12)the total amount of a charge under subsection (1)shall not exceed such amount as stands prescribed for the time being as the appropriate maximum amount for search and retrieval and copying,
(d) there shall be no charge under subsection (1)if, in the opinion of the head concerned, the total amount of the charge would be less than such amount (if any) as stands prescribed for the time being as the appropriate minimum amount for search and retrieval and copying, and
(e) different maximum and minimum amounts may be prescribed under this subsection in respect of different public bodies or prescribed bodies and the power to prescribe such a maximum (in relation to any particular body) shall be exercised in a manner to take account of the greater amount that subsection (12) provides for the prescription of (in relation to that body) as concerns the overall ceiling limit.
(5) Subject to subsection (3), where, in the opinion of the head concerned, the estimated cost, as determined by the head, of the search for and retrieval and copying of a record the subject of an FOI request is likely to exceed the appropriate minimum level as prescribed --(a) a deposit of such amount as may be determined by the head (not being less than 20 per cent of such cost) shall be charged by the FOI body concerned and paid by the requester concerned to the body,(6) A head may reduce the amount of or waive a search and retrieval and copying charge or deposit under subsection (1)or(5)if, in his or her opinion, some or all of the information contained in the record concerned would be of particular assistance to the understanding of an issue of national importance.
(b) the process of search for and retrieval of the record shall not be commenced by the body until the deposit has been paid, and (c) the head shall, not later than 2 weeks after the receipt of the request aforesaid, cause a notice in writing for payment of the deposit to be given to the requester and the notice shall include an estimate of the length of time that the process of searching for and retrieving the record will occupy and a statement that the process will not begin until the deposit has been paid and that the date on which a decision will be made in relation to the request will be determined by reference to the date of such payment.
(7) In a case to which subsection (5)applies, the head concerned shall, if so requested by the requester concerned --(a) assist the requester if the requester wishes to amend or limit the request in order to reduce or eliminate the charges that arise or are likely to arise under subsection (1),(8) Where a deposit undersubsection (5)is paid, the amount of the charge under subsection (1)payable in respect of the grant of the FOI request concerned shall be reduced by the amount of the deposit.
(b) if amendments are specified under paragraph (a), make such of them (if any) to the request as the requester may determine.
(9) Where a deposit under subsection (5)is paid and, subsequently, the grant of the FOI request concerned is refused or is granted in relation to a part only of the record concerned, the amount of the deposit or, if a charge under this section is payable in respect of the grant, so much (if any) of that amount as exceeds the amount of the charge shall be repaid to the requester concerned.
(10) Where a charge or a deposit under this section is paid, and subsequently, the charge or deposit is annulled or varied under section 21, 22or 24, the amount of the charge or deposit so annulled or, as the case may be, any amount thereof in excess of the amount thereof as so varied shall be repaid to the requester concerned.
(11) Section 13(1)shall be construed and have effect --(a) in relation to a case in which a deposit is payable under subsection (5), as if the reference to 4 weeks were a reference to a period consisting of 4 weeks together with the period from the giving of the notice undersubsection (5)(c)concerned to the requester concerned to the date of the receipt of the deposit,(12) (a) Where the amount of a search and retrieval and copying charge under subsection (1)exceeds or is likely to exceed the overall ceiling limit prescribed, under paragraph (b), for the purposes of this subsection --
(b) in relation to a case in which such a deposit is annulled following a review under section 21or 22or an appeal undersection 24, as if the reference to 4 weeks were a reference to a period consisting of 4 weeks together with the period from the giving of the notice undersubsection (5)(c)to the requester concerned to the date of the decision under section 24or, as the case may be, of the giving to the requester concerned of notice under section 21or 22of the decision, and
(c) in relation to a case in which an amendment pursuant to subsection (7)has the effect of eliminating such a deposit, as if the reference to the receipt of a request under that section were a reference to the making of the amendment.(13) (a) A fee of such amount (if any) as may be prescribed shall be charged by the FOI body concerned under this subsection and paid by the applicant concerned to --(i) the body concerned shall so inform the requester,(b) There shall be prescribed for the purposes of this subsection an amount to be called, and in this section referred to, as the overall ceiling limit; and different such amounts may be prescribed for those purposes in respect of different public bodies or prescribed bodies.
(ii) the body shall assist the requester if the requester wishes to amend or limit the request in order to reduce the charges that arise or are likely to arise under subsection (1)to an amount less than or equal to the overall ceiling limit so prescribed,
(iii) if the requester does not amend or limit the request such that the charges that arise or are likely to arise under subsection (1)are reduced to an amount less than or equal to the overall ceiling limit so prescribed, the body may refuse the request, and
(iv) where the body decides to process the request, the requester shall be required to pay the full cost of the charges likely to be payable and subsection (5)shall apply.(14) An FOI body shall endeavour to establish a facility by which payment or refund of any fees due under this Act may be made electronically.”.(i) the body in respect of an application under section 21, or(b) A fee under this subsection shall be paid at the time of the making of the application concerned and, if it is not so paid, the head concerned or, as the case may be, the Commissioner shall refuse to accept the application, and it shall be deemed, for the purposes of this Act, not to have been made.
(ii) the Commissioner in respect of an application undersection 22.
(c) Fees of different amounts may be prescribed underparagraph (a)in respect of different classes of applicant.
- James Bannon
- Pat Breen
- Richard Bruton
- Jerry Buttimer
- Catherine Byrne
- Eric Byrne
- Dara Calleary
- Ciarán Cannon
- Joe Carey
- Paudie Coffey
- Áine Collins
- Niall Collins
- Michael Conaghan
- Seán Conlan
- Paul Connaughton
- Ciara Conway
- Noel Coonan
- Marcella Corcoran Kennedy
- Joe Costello
- Barry Cowen
- Lucinda Creighton
- Jim Daly
- Jimmy Deenihan
- Pat Deering
- Regina Doherty
- Stephen Donnelly
- Paschal Donohoe
- Timmy Dooley
- Robert Dowds
- Andrew Doyle
- Bernard Durkan
- Damien English
- Alan Farrell
- Frank Feighan
- Seán Fleming
- Noel Grealish
- Brendan Griffin
- Simon Harris
- Martin Heydon
- Brendan Howlin
- Heather Humphreys
- Kevin Humphreys
- Derek Keating
- Paul Kehoe
- Billy Kelleher
- Alan Kelly
- Seán Kenny
- Séamus Kirk
- Michael Kitt
- Seán Kyne
- Anthony Lawlor
- Kathleen Lynch
- John Lyons
- Michael McCarthy
- Charlie McConalogue
- Helen McEntee
- Gabrielle McFadden
- Dinny McGinley
- Mattie McGrath
- Michael McGrath
- John McGuinness
- Joe McHugh
- Tony McLoughlin
- Michael McNamara
- Eamonn Maloney
- Micheál Martin
- Peter Mathews
- Michael Moynihan
- Michelle Mulherin
- Eoghan Murphy
- Gerald Nash
- Denis Naughten
- Dan Neville
- Éamon Ó Cuív
- Seán Ó Fearghaíl
- Willie O'Dea
- Kieran O'Donnell
- Patrick O'Donovan
- Fergus O'Dowd
- John O'Mahony
- Joe O'Reilly
- Jan O'Sullivan
- Maureen O'Sullivan
- John Perry
- John Paul Phelan
- Ruairi Quinn
- Michael Ring
- Brendan Ryan
- Seán Sherlock
- Brendan Smith
- Arthur Spring
- Emmet Stagg
- David Stanton
- Robert Troy
- Joanna Tuffy
- Liam Twomey
- Jack Wall
- Brian Walsh
- Alex White
- Gerry Adams
- Tommy Broughan
- Joan Collins
- Seán Crowe
- Clare Daly
- Pearse Doherty
- Dessie Ellis
- Martin Ferris
- John Halligan
- Séamus Healy
- Joe Higgins
- Pádraig MacLochlainn
- Mary Lou McDonald
- Finian McGrath
- Sandra McLellan
- Caoimhghín Ó Caoláin
- Aengus Ó Snodaigh
- Jonathan O'Brien
- Shane Ross
- Róisín Shortall
- Peadar Tóibín
- Mick Wallace
I move amendment No. 69:
In page 45, between lines 17 and 18, to insert the following:"28. The body will provide information regarding policy decisions and actions, to include but not exclusive to financial decisions and service delivery which impact on citizens in all instances.".
I move amendment No. 70:
In page 46, line 36, to delete "concerned".The purpose of this amendment is to correct a drafting issue. Section 20 of the 1997 Act provided that a head may refuse to grant a freedom of information request if the record concerned contains matter relating to "the deliberative processes of the public body concerned". That text was amended in the 2003 Act to refer to "the deliberative processes of a public body". The effect of the 2003 amendment is that, for example, if the Department of Public Expenditure and Reform received a freedom of information request for records relating to a deliberative process in the Department of Health, those records would be afforded the same protection as if the request had been made to the Department of Health. This is considered to be the correct approach on advice from Parliamentary Counsel.
I move amendment No. 72:
In page 57, between lines 30 and 31, to insert the following:"(10) Subject to subsections (1) to (9), where the information relates to personal information of the requester, such information shall be released even where the information is provided by a third party.".I mentioned a particular case on Committee Stage but I will not labour the point too much. With the Department of Social Protection, for example, a person may not be approved for a disability allowance or invalidity payment and before a proper review or appeal is requested, one must see what is on file and establish the reasons the request was not granted in the first place. I would encourage such people to make a freedom of information request to establish the reason their request was declined, as it may relate to means or medical grounds, for example. The Department of Social Protection is the best Department for responding to freedom of information requests, but perhaps other cases will ultimately be covered by codes of practice.
I have encountered cases where a person may not have the form signed by their GP returned. It may stipulate whether requirements were mild, moderate, profound or severe. The reason for the form not being returned could be that the form was signed by a doctor, which is a third party even when it is the GP of the person concerned. The consent of the person who completed the form is required because he or she is an interested or relevant party. This can lead to cases where a person's medical assessment cannot be released unless the GP formally consents to the release of such information. This seems a bit severe and perhaps somebody is interpreting regulations quite literally. Perhaps a representative of doctors has indicated to the Department somewhere along the line that before any medical assessments are released, that group should be informed. We regularly get letters from public bodies informing us of a freedom of information request. There has been confusion on a couple of occasions and perhaps these were isolated. Conversely, it may be established practice. If a person requests their own information, it should be released, even if a third party has not given consent.
The potential for release of personal information under freedom of information is one of the most sensitive aspects of the regime. The provisions included in the current Act were carefully crafted to provide a very high but not absolute level of protection for personal information.
Notwithstanding the many complex and difficult issues that have arisen in the area of personal information over the years, and the application of the freedom of information Acts, the existing provisions have, I believe, stood the test of time. Notwithstanding this, it will be very important that the code of practice for freedom of information provides further guidance on several aspects of the treatment of personal information under the legislation. Deputy Fleming has adverted to this point.
A key presumption in freedom of information is that a person should have access to his or her own personal information. This is reflected, for example, in the absence of any fees or charges for personal freedom of information requests. That was always so before this new provision. This is not, however, an absolute right and must be balanced against other objectives such as, for example, ensuring public bodies receive confidential information on matters which are relevant to the performance of their duties and responsibilities.
There are a wide range of circumstances in which a public body may hold what would fall within the definition of personal information under freedom of information legislation in circumstances that the relevant information has been provided by a third party. These records could relate, for example, to the medical or psychiatric history of a person; social work cases, where there might be distressing facts that need further criminal investigation; performance assessments or employment references; or Garda security or intelligence matters. It cannot be the case that a person would have an unrestricted right to such information in all circumstances, which would override all other considerations.
The legislation explicitly provides that a decision-maker must take into account the possible harm to the requester from the release of particular health records, allowing these to be released to a nominated health professional. More generally, in deciding on a request for information, the decision-maker must take cognisance of the basis that exists for exercising relevant exemptions that may apply to third-party information on a person held by a public body. In some cases an absolute prohibition may exist on the release of that information. In others, a public interest balancing test may apply. It is very unlikely that there would be one approach that aligned with every set of circumstances.
It cannot, however, be correct that all such information would always be released. It could do terrible damage to people to release some information in that way. Such an approach would be likely to have what could be described as a chilling effect on the appropriate communication of information from one public body to another. It is important that many bodies receive information in confidence from third parties which may assist them in providing services to vulnerable members of the community and that they would be able to do that on the basis that there would not be an absolute right to release that information to a requester. I do not believe we should move from the tried and trusted path that has existed since the 1997 Act in respect of this very sensitive area. I hope the Deputy appreciates that.
I thank the Minister for his considered response. He has clarified the point because there probably is a general presumption that a person has an automatic right to all personal information on him or herself. The Minister has reminded me of cases of people who were, to use the old phrase, committed against their will and there was probably information on the files that could do them further harm if they were to see it now about who committed them or who made a request, which could cause mayhem in certain situations. I can understand and I am grateful that the Minister reminded me of the fact that the right to one’s personal information is not absolute because it could have serious consequences. I will withdraw the amendment on the basis that the Minister when drafting the code of practice will try to tease this point out in more detail.
I move amendment No. 73:
In page 60, lines 34 to 37, to delete all words from and including “body,” in line 34 down to and including “2002).” in line 37 and substitute “body.”This relates to different situations where a head may refuse information if it deals with the financial and economic interests of the State. I understand the section in general and the refusal of information if it affects the State’s ability to collect tax or levy rates or if it affects foreign investment or industrial development. The particular lines I want deleted are:
(r) advising on or managing public infrastructure projects, including public private partnership arrangements (within the meaning of the State Authorities (Public Private Partnership Arrangements) Act 2002).The arrangements under the existing Act without that section prevent information coming out about public private partnerships, PPPs, because of their commercial sensitivity. I believe there are enough provisions in the legislation to protect any of the issues relating to public private partnerships and the management of these infrastructural projects already in the system without this. Some of the information that would not be commercially sensitive could be released. I am worried that this blanket permission for a head to refuse information is too extensive and wide ranging. A more specific version of the present arrangement would be better.
Section 40(1), which is also contained in the 1997 Act, provides that access to a record may be withheld if its release could have a serious adverse effect on the ability of the Government to manage the national economy or financial interests of the State, could result in undue disturbance of the ordinary course of business, could reasonably be expected to have a negative impact on decisions by enterprises to invest or expand in the State or could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons.
Section 40(2) lists a range of records to which subsection (1) applies. In addition to the classes of records which could be protected under the 1997 Act, this Bill adds some classes of records in light of freedom of information being extended to the National Treasury Management Agency, NTMA, group of companies, including those the Deputy’s amendment seeks to delete, such as records relating to liabilities of the State or a public body and records advising on, or managing, infrastructure projects, including PPP projects.
I reassure Deputy Fleming that the section does not restrict access to such records automatically but only in the circumstances where the grounds in section 40(1) apply, in other words, where the deciding officer would on balance believe the specific information would have the deleterious effect we have set out. That section has been in operation since the 1997 Act and is an important safeguard for the State.
I move amendment No. 74:
In page 61, to delete line 4 and substitute the following:“41. (1) The 52 non-disclosure provisions recommended for exclusion in Schedule 3, where the Information Commissioner disagreed with the views of the relevant Departments, shall be deleted from Schedule 3.We had a brief discussion on this subject on Committee Stage. It relates to enactments relating to non-disclosure of records. I gave a brief rundown of the different headings and terminology in the legislation. We are getting into difficult territory. As the Minister knows, under the existing freedom of information legislation, the Oireachtas Joint Committee on Finance, Public Expenditure and Reform is supposed to hold a five-year review. As far as I understand it, the committee has not lived up to its requirements. It is some time since this review was carried out.(2) A head shall refuse to grant an FOI request if—”.
It is some time since that was done. One is long overdue. As a first step the committee some time ago asked the Information Commissioner to examine all the items in Schedule 3, which deals with enactments excluded from the application of section 41, which deals with the enactments relating to non-disclosure of records. The Information Commissioner presented a detailed and comprehensive report to the committee last year.
The report related to the enactments that are excluded from the scope of the freedom of information regime, as restated in Schedule 3 to this Bill. The excluded statutes are set out on page 79 of the Bill and the excluded statutory instruments are set out on page 81. The Information Commissioner recommended that 52 enactments - my recollection is that approximately 100 pieces of primary legislation and statutory instruments are on the list - should be removed from Schedule 3. In approximately 48 cases, she agreed with the reasoning for their retention on the list. The Department gave its commentary to the Office of the Information Commissioner, which passed it on to us. My amendment, which follows on from the report the committee received from that office some time ago, proposes that "the 52 non-disclosure provisions recommended for exclusion in Schedule 3, where the Information Commissioner disagreed with the views of the relevant Departments, shall be deleted from Schedule 3". I am calling for the deletion of those 52 provisions from Schedule 3.
The Information Commissioner, who was very responsible in her work, agreed that approximately half of the enactments should be left on the list. I do not have Ms O'Reilly's detailed report with me, but my recollection is that her report referred to certain enactments - page 80 of this Bill refers to "No. 42 of 2004 - Health Act 2004 - Section 26", to "No. 22 of 2005 - Veterinary Practice Act 2005 - Section 25" and to "No. 10 of 2005 - Safety, Health and Welfare at Work Act 2005 - Section 73" - that set out the recruitment and grievance procedures etc. applying to doctors, nurses and other professions. Those areas should not be shrouded in a cloak of secrecy for good reasons. The Department did not see fit to legislate in that way, however. Ms O'Reilly disagreed with that. I agree with her assessment, on balance, because I believe there is still a culture of trying to hide information.
I will refer to an example I have encountered recently of the way things work in the public service. I do not know whether it relates directly to the problem I am trying to address. I was shocked by this case, which I am taking up with the line Minister. A person whose reputation was damaged as a result of a public servant carrying out his duties in an unsatisfactory manner took the public body in question - the HSE - to court. It went to the High Court. I will not give the Minister all the details. It is on the public record. I am not providing any confidential information. I have read the High Court's 101-page decision. The High Court judge rightly condemned the performance of the public official. An award of approximately €763,000 was made against the Irish taxpayer because of the way public officials went about their business in following up the allegations that damaged this person's good name, character and career prospects. When this matter went back into the public sector after the High Court had dealt with it, a debriefing of the High Court decision took place within the public service and it was decided that no disciplinary action should be taken against the individual public servant concerned. Maybe he was doing his best, but got it wrong.
As a result of the decision not to take disciplinary action - some of the enactments I have mentioned contain provisions relating to disciplinary action - no record of the public servant's involvement in this case, which cost the State over €750,000 and on foot of which serious statements were made by a judge, was kept on his personal file. I got a phone call last week to inform me that the public servant in question has been approved for promotion by the relevant public body. When I took it up with the chief executive of the State body concerned, I was told that neither he nor the interview board was aware of this. It was not on the person's file because no disciplinary action had been taken. As a consequence, the interview board had no knowledge of the matter. He was offered the job on the basis of his CV and his performance at an interview. No record of what had happened was considered. I am not saying it should have prevented him from getting the job, but those involved should have been made aware of it.
This case gives us an example of the kinds of disciplinary issues that are covered by the enactments listed in Schedule 3. I am thinking specifically of the Health Acts, but other Acts relating to dentists and other medical bodies are also covered by this legislation. These bodies do not want light to shine on what goes on under these Acts. Over the years, the Department has succeeded in getting them included in Schedule 3 so that they are excluded from these freedom of information provisions. I am talking about public bodies governed by statute that are covered by the freedom of information regime, but benefit from having particular sections of particular Acts excluded from freedom of information. Emily O'Reilly has expressed her disagreement in 52 such cases. I suggest that her considered view on this matter is probably a more balanced view as it is in the interests of the public rather than the line Department. I ask the Minister to make arrangements to agree with my amendment, which follows on directly from the recommendation of the Information Commissioner.
I will not comment on the specific case highlighted by the Deputy because I have no detail on it. I have no knowledge - good, bad or indifferent - of the case the Deputy instances. I will confine my response to the specific legislative provision and the amendment. Section 41, as contained in section 32 of the original 1997 Act, upholds the operation of specific confidentiality and non-disclosure provisions in other enactments - this is the very thing Deputy Fleming has been talking about - unless such provisions are listed in Schedule 3 to this Bill, in which case they are subordinate to freedom of information. Provision is made in the legislation for the review of secrecy provisions in other enactments. As the Deputy rightly identified, the members of the Joint Committee on Finance, Public Expenditure and Reform can review and make recommendations from time to time on the question of whether these provisions should be amended or repealed. If it is recommended that they should continue in force, the joint committee has the power to recommend whether they should override freedom of information or should be included in Schedule 3. That is a power of the Oireachtas at committee level. I have been informed that such a review is currently under way. It will be a matter for the committee, of which Deputy Fleming is a member, to recommend which of the non-disclosure provisions should be included in Schedule 3. That will be the committee's job.
The Act does not provide for a ministerial power to amend Schedule 3 to remove or include specific provisions. It is not a matter for me. I sought the advice of the Office of the Attorney General on the matter with a view to providing for a ministerial power to make an order which would allow Schedule 3 to be amended if a public body accepted the recommendation of the Oireachtas committee. I am advised by that Office of the Attorney General that as a matter of constitutional law, I cannot by order amend primary legislation in that way. It would be a matter for the Oireachtas as a whole. The advice of the Attorney General makes it clear that it is not legally feasible to make an amendment to an Act with the effect that decisions of the Information Commissioner should override primary legislation made by the Houses of the Oireachtas and signed by the President. As such, we must rely on the Oireachtas committee, of which the Deputy is a member, to decide what action should be taken, as provided for in section 41, and for amendments to Schedule 3 to be made by way of primary legislation if so recommended. On that basis, there is no basis for me to accept this amendment.
It is a great committee for one's prospects of getting a promotion. I suggest that if one joins the Joint Committee on Finance, Public Expenditure and Reform or perhaps the Committee of Public Accounts, one's chances of being promoted will be very high. I congratulate each of the five members of the committee we have lost. I understand what the Minister is saying. I knew what the answer would be. We discussed it previously. I know the responsibility lies with the committee.
We all know that too. Perhaps the Minister might use his good office to have a word with his party colleague who is the Chairman of the joint committee and see whether he can move on this topic. It is a very busy committee and it deals with many issues. The Chairman of the committee is involved in the banking inquiry. Something needs to be done in the meantime. Over the years, many people have asked who regulates the regulator. We are meant to regulate the regulator. This is one of the few legislative provisions in which an Oireachtas committee is given a specific function involving the review of legislation. The committee in question has failed to do so. I am just one of the committee's 27 members. As the Minister might have gathered, I am probably the only member of the committee who has been pushing this issue. I would appreciate the support of the other members of the committee.
I move amendment No. 76:
In page 64, to delete lines 25 to 31 and substitute the following:Amendments Nos. 76 to 78, inclusive, and parts of Amendments Nos. 84 and 88, relate to an anomaly relating to how the records of the Information Commissioner are treated under FOI. FOI does not apply to records relating to reviews conducted by the Information Commissioner under the FOI Acts. Only the records relating to the general administration of the Office of the Information Commissioner are subject to FOI. There is no similar exemption in regard to reviews conducted by the Information Commissioner under the European Communities (Access to Information on the Environment) Regulations 2007. The Information Commissioner sought that this anomaly be addressed. In fact, it was the previous Information Commissioner, Ms O'Reilly, who asked that this amendment be submitted. This is being effected by providing an exemption to the Office of the Information Commissioner in respect of the records it holds in regard to both types of review.
“(g) a record relating to an audit, inspection, investigation or examination carried out by the Comptroller and Auditor General under the Comptroller and Auditor General Acts 1923 to 1993, the Exchequer and Audit Department Acts 1866 and 1921, or any other enactment, other than—”.
I should have also referred to amendments Nos. 84 and 93 because they are in this group. The purpose of those amendments is to provide for an exemption from FOI for the records of child abuse bodies other than in regard to their administrative records. The bodies in question are the Commission to Inquire into Child Abuse, the Residential Institutions Redress Board and the Residential Institutions Redress Review Committee.
In view of the sensitivity of the records held by these bodies and the fact that, even if their records were subject to FOI in full, it is likely they would be exempt from release under the FOI exemptions contained in this legislation relating to personal information and information obtained in confidence, I considered, having received a request, that these bodies be exempted from FOI. I decided, however, that it would be difficult to justify providing them with an exemption in respect of the administrative records that they hold. Legal advice received from the Attorney General raised no legal difficulties in making these bodies subject to FOI in terms of their administrative records. The exemption proposed for these bodies will be similar to that applying to the Office of the Attorney General and the Director of Public Prosecutions, for example.
Regarding the Central Credit Register, the purpose of amendment No. 84 is to provide an exemption for the Central Bank in respect of records relating to the Credit Register to be established under the Credit Reporting Act 2013. The Credit Reporting Act 2013, which provides for the establishment, maintenance and operation of a central credit register by the Central Bank, was enacted in 2013. When that register is established, it will contain records of virtually all borrowings and repayments of individuals across the State. The credit histories relating to individuals and persons who are licensed or regulated by the Central Bank will be covered under the existing Central Bank exemptions under FOI. Some companies not regulated by the Central Bank, for example, Dunnes Stores and Ryanair, would be subject to consideration for release under FOI as the Bill now stands, although there is a very strong likelihood that such records would be exempt because they were received in confidence or they are commercially sensitive. I am, however, proposing this exemption on the basis that confidential personal information relating to an individual’s financial affairs should not be included under the remit of FOI.
The other issue relates to Iarnród Éireann. Before the Bill was published, it was decided that Irish Rail would be brought under the remit of FOI. In making arrangements for this measure, it became clear that the inclusion of Irish Rail would have to be refined to ensure that no unintended consequences would result. Does the Deputy remember I said that monopolies would be captured? Rosslare Europort is operated by Irish Rail in a commercial environment and should be treated in the same way as the other commercial ports, and that is what I intend to do.
I thank the Minister. When I read the reference to Rosslare I thought it was something to do with Wexford but I was willing to let it pass. If there was something to do with Wexford I would not try to block it but if it in any way helps the operation down there, well and good.
Amendment No. 84 deals with the Office of the Commissioner for Environmental Information. I accept what the Minister said about the Commission to Inquire into Child Abuse and so on but in sub-paragraph (d) of the amendment, the Minister is inserting a provision which is essentially to restrict freedom of information in these situations. I have a problem with restricting environmental agencies in terms of not being able to get environmental information.
The Office of the Information Commissioner. The Ombudsman is the Environmental Information Commissioner as well. In the same way as the Information Commissioner is dealing with normal queries under FOI, where it relates to environmental information under the European directive, the same exemptions would apply.
I might give a practical example. If the Information Commissioner determines to uphold a decision made by a deciding officer not to release information, it would be absurd if one could, under the FOI process, request the file containing the very information the Information Commissioner has decided not to release.
Which body has the environmental information? I thought the Office of the Information Commissioner had that separate role. To who or whom can a person submit a FOI request to get the environmental information if not this particularly body? I thought that office had a specific role with regard to European environmental information.
The Information Commissioner and the Information Commissioner relating to the European directive are one and the same; the same office handles it. I am trying to parallel the treatment of the deliberative process in regard to FOI appeals and regarding appeals under the European environmental regulations.
This legislation has a reference to SI 133 of 2007. Those regulations define environmental information and the public authorities from which it may be requested. They also set out the manner in which environmental information can be sought and provided and if it is refused, there can be an appeal. All I want is an assurance from the Minister that the relevant environmental information can be obtained directly from the public authorities through FOI.
I move amendment No. 82:
In page 70, lines 21 and 22, to delete "paragraph (ap)" and substitute "paragraph (as)".These amendments are being proposed to update references in this Bill to take account of changes made to other pieces of legislation, namely, the Central Bank Act 1942 and the Road Traffic Act 2014, since Committee Stage of the Freedom of Information Bill last November.
I move amendment No. 83:
In page 70, to delete lines 23 to 29 and substitute the following:" "(as) for the purposes of contractual or institutional protection schemes as referred to in Article 113(7) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 20131, or(at) to the Information Commissioner that is required for the performance of that Commissioner’s functions under the Freedom of Information Act 2014.".".
1.OJ No. L 176, 20.06.2013, p.1
I move amendment No. 84:
In page 72, to delete lines 10 to 22 and substitute the following:"(b) the Central Bank of Ireland, insofar as it relates to—(i) records held by it containing—(c) The Commission to Inquire into Child Abuse, in the performance of its functions under the Commission To Inquire Into Child Abuse Act 2000, other than insofar as it relates to records concerning the general administration of those functions;(I) confidential personal information relating to the financial or business affairs of any individual, or(ii) records—
(II) confidential financial, commercial or regulatory information relating to the business affairs of any person who holds or has held or who has applied for a licence, authorisation, approval or registration from the Central Bank of Ireland, or is otherwise regulated by the Central Bank of Ireland,
that the Central Bank of Ireland has received for the purposes of performing, or in the discharge of, any of its statutory functions (other than when that information is contained in records in summary or aggregate form, such that persons cannot be identified from the record), and(I) held by the Central Bank of Ireland on the Central Credit Register established by it under section 5(1), or
(II) produced by the Central Bank of Ireland under section 30(1),
of the Credit Reporting Act 2013 (No. 45 of 2013);
(d) the Office of the Commissioner for Environmental Information, in the performance of its functions under the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007), other than insofar as it relates to records concerning the general administration of those functions;".
Amendment No. 85 in the name of the Minister arises out of Committee proceedings. Amendments Nos. 85 to 87, inclusive, 94, 97, 101, 102 and 104 are related and may be discussed together.
I move amendment No. 85:
In page 72, to delete lines 23 to 25.Amendments Nos. 85 to 87, inclusive, 94, 97, 101, 102 and 104 are being grouped for ease of discussion, although there are five separate issues involved. I will deal with them separately.
The issues are, first, moving of the exemption for the Office of the Director of Corporate Enforcement; second, grant of part exemption for the Data Protection Commissioner; third, moving of the exemption for the education and training boards; fourth, as I promised, making monopoly business of energy network companies subject to FOI; and, fifth, deleting Bantry Bay Harbour Commissioners from the exempt list because, believe it or not, since we last discussed them, the Bantry Bay Harbour Commissioners, I am afraid to report, have ceased to exist. I do not know whether I need to go through those in any other great detail.
Generally, I understand what is involved but there is one issue. I tabled amendments which are part of this group. Amendment No. 101 is in my name and the Minister's name and it deals with EirGrid. EirGrid is the issue I want to talk about in this group. We put the case to the Minister on Committee Stage that Irish Water is now under FOI and EirGrid is a State monopoly. The Minister is bringing EirGrid into the section in the legislation that deals with partially included agencies. There are exempt agencies and partially included agencies. Amendment No. 86 states:
EirGrid plc, other than insofar as it relates to records held by it relating to its functions under its transmission system operator licence granted under section 14(1)(e) of the Electricity Regulation Act 1999;[.]I note the debate we had and that EirGrid will have commercial transactions with various power plants on such issues as what it is paying and when they come online. Those are commercial issues because there are many providers other the ESB and it is a commercial business. That is not what my party is getting at, but will the Minister confirm, because one gets lost with partially included bodies and what is included in the provision, that it means EirGrid other than in so far as it relates to its functions? Will he clarify that, once the Bill is enacted and fully implemented, all aspects of EirGrid's work on the planning process of the pylons, Grid Link, Grid West and the North-South interconnector will be subject to FOI? I can understand the Minister would have a difficulty in relation to the commercial sensitivity aspect of EirGrid's dealings with the power plants, but what has exercised the public mind more than anything is the performance of EirGrid's public duties in so far as it affects the planning of routes, planning applications and the public consultation process. He will be aware there were 35,000 submissions and as a Leinster Member, he will be aware of the areas affected and that there is quite a lot of controversy in many other areas. Will the Bill facilitate full FOI disclosure on the planning of these projects? This would not be the commercially sensitive aspect. It is only the early stages before anybody ever talks of construction or the cost of a pylon and I want to know if that will be included.
If it is included, will the Minister indicate the earliest year about which a person can make an FOI request? There are EirGrid disputes that are probably going on a number of years. I intend it to go back not to the year dot or anything like that, but up to six years. He might also state the earliest date about which a person will be able to make an FOI request on EirGrid in the future. For example, there have been several oral hearings and An Bord Pleanála decisions on EirGrid in recent years. If those who felt they did not get all the information one gets at such hearings or the information that is published by the applicant, and EirGrid will only have published what suited its application in these hearings, will this provide an opportunity for them to be able to use FOI to get information on some of those projects that are currently trundling away through the system? The Minister might clarify precisely what type of information will be available.
It was a bit churlish of me not to state that, unusually, two of these amendments, amendments Nos. 101 and 104, are jointly sponsored by myself and Deputy Sean Fleming.
To deal with the specific points he made which relate to the energy network companies, Deputies will be aware of statements made by the former Minister for Communications, Energy and Natural Resources, Deputy Rabbitte, in recent weeks that he was in favour of FOI applying to the monopoly energy network businesses of the ESB, Ervia and EirGrid. Ervia is the new company that has taken over the business of Bord Gáis Éireann since Bord Gáis Energy, the competitive gas energy supply business, was sold earlier this year.
On foot of that commitment, my officials have been engaging with officials in the Department of Communications, Energy and Natural Resources in an effort to draft a suitable amendment to ensure that the monopoly businesses of the bodies are made subject to FOI but that the integrity of the supply of both gas and electricity is safeguarded in the strategic interests of the State. It will also be necessary to ensure that the commercial enterprises of the companies are protected, consistent with other commercial public bodies, and that a situation is not created where the financial standing of the companies and their ability to attract funding from the financial markets on the best possible terms for critical future investments is put at risk.
What I have decided to do is to make preliminary amendments at this stage. I may have to revisit these in the Seanad in the autumn to ensure that the issues I have already mentioned are adequately addressed. Ervia is a company in development and the current licence holder as transmission and distribution system operator is Gaslink Independent System Operator Limited. This is likely to change in the short term when Ervia establishes its gas network company as a subsidiary. Any changes to the Bill as a result of developments in this area will also be addressed before the Bill concludes its passage through the other House. I will pursue these issues in consultation with the new Minister for Communications, Energy and Natural Resources and with the Commissioner for Energy Regulation.
The specific amendments I am tabling here are to remove Bord Gáis Éireann from the list of exempt agencies and replace it with its successor Ervia and to provide an exemption in Schedule 1 Part 1 so that the impact of amendments Nos. 87 and 97 is that the records of Gaslink Independent System Operator Limited as transmission and distribution system operator under the Gas (Interim) (Regulation) Act 2002 are subject to FOI. The impact of amendments Nos. 86 and 101 is to remove EirGrid plc from the list of exempt agencies in Schedule 1 Part 2 and to add it to the list of agencies that are exempt in part in Schedule 1 Part 1 so that its records relating to its licensed functions as transmission system operator under the Electricity Regulation Act 1999 are subject to FOI. As ESB Networks Limited is a separate legal entity from the ESB Group, I am leaving the ESB Group in the exempt list, but in amendment No. 86 I am including an exemption for ESB Networks Limited in Schedule 1 Part 1 so that the records of ESB Networks Limited relating to its licensed functions as distribution system operator under the Electricity Regulation Act 1999 are subject to FOI.
This all sounds complicated but I am stripping the commercial bits from the monopoly bits.
The exemption for Irish Water is being deleted from the Bill in amendment No. 104 and I have already given my reason for the exemption of Bantry Bay Harbour Commissioners.
I love to bring matters back to layperson’s English. Essentially, the Minister is including ESB Networks Limited in this Schedule because it deals with smaller transmission issues. Does this mean the planning process involving EirGrid and its transmission functions will be covered by freedom of information?
While I cannot pre-empt the passage of the Bill through the other House, my ambition is to have it done early in the next session. There is a six-month preparation time for it to become effective. During the course of next year, I expect all the bodies listed in these amendments to have a functioning freedom of information system. It will also be backdated. While this is a matter for discussion, I envisage it going back to April 2008.
I move amendment No. 86:
In page 72, between lines 34 and 35, to insert the following:“(e) the Data Protection Commissioner, or an officer of the Commissioner, in relation to a record (save as regards a record concerning the general administration of the Office of the Commissioner);
(f) the Director of Corporate Enforcement, or an officer of the Director, in relation to a record held or created under the Companies Acts (save as regards a record concerning the general administration of the Office of the Director);
(g) education and training boards, insofar as it relates to any records that would enable the compilation of information (that is not otherwise available to the general public) concerning the comparative performance of schools in respect of the academic achievement of students enrolled therein, including, and without prejudice to the generality of the foregoing—(i) the overall results in any year of students in a particular school in an examination or assessment, or(h) EirGrid plc, other than insofar as it relates to records held by it relating to its functions under its transmission system operator licence granted under section 14(1)(e) of the Electricity Regulation Act 1999;
(ii) the comparative overall results in any year of students in different schools in an examination or assessment;(i) ESB Networks Limited, other than insofar as it relates to records concerning its functions under its distribution system operator licence issued under Section 14(1)(g) of the Electricity Regulation Act 1999;”.
I move amendment No. 87:
In page 72, between lines 39 and 40, to insert the following:“(f) Gaslink Independent System Operator Limited, other than insofar as it relates to records held by it relating to its functions under its—(i) transmission system operator licence granted under section 16(1)(d), or
(ii) distribution system operator licence granted under section 16(1)(f), of the Gas (Interim) (Regulation) Act 2002 (amended by Regulation 41(b) of the European Communities (Internal Market in Natural Gas and Electricity) Regulations 2011 (S.I. No. 630 of 2011));”.
I move amendment No. 88:
In page 73, between lines 8 and 9, to insert the following:“(i) Iarnród Éireann, insofar as it relates to the operation of Rosslare Europort and its freight operations in the State;
(j) the Office of the Information Commissioner, in the performance of its functions under this Act or under the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007), other than insofar as it relates to records concerning the general administration of those functions;”.
I move amendment No. 89:
In page 73, to delete lines 12 to 33.This amendment concerns the Labour Relations Commission which I will not press.
Amendment No. 91 relates to the National Treasury Management Agency, NTMA. While we will not go the wire on this, I am still shocked how the agency and the Department of Finance got one over on the Minister on this. Here we are opening up freedom of information, abolishing fees and encouraging open government and open data, but the Minister’s friends in high places got at him to put in an amendment to ensure information concerning the remuneration, terms and conditions of those in the NTMA are not available to freedom of information, other than when that information is contained in the records in summary or collective form such as that individuals cannot be identified. A cloak of secrecy is being put around the pay of the top people in the NTMA. Shame on the Minister for falling for that. The Minister for Finance, Deputy Noonan, obviously told the Minister he can have his freedom of information but he keeps his secrecy for his NTMA. That is not a good development.
Amendments Nos. 98 and 100 seek to have Bord na Móna and Coillte, respectively, taken out of the Schedule of exempt agencies. Could the same as was done with ESB Networks and EirGrid by moving them into Schedule 1 Part 1 be done in the case of these commercial semi-State agencies?
We have had the arguments about these amendments already. There is commercially sensitive information in these organisations which should exempt them from freedom of information and there are sufficient safeguards in the legislation to achieve this. I am not in favour of an approach which gives them full protection, however. It is important and useful that there should be bits and pieces where these organisations are open to freedom of information to remind them they work for the citizens ultimately. I am opposed in principle to blanket exemptions. Reasonable exemptions are already covered under the Bill.
We have discussed this matter of exemptions up and down. I too have significant reservations around blanket exemptions. The supposition should be inclusion, bar where it can be demonstrated there are reasons of commercial sensitivity - that old chestnut - or other reasons as set out in the legislation. Organisations should have to bring forward actively reasons under sections 32, 36, 37 or 39 as to why they should be exempted. The purpose of my amendment is to deny any agency that type of blanket exemption.
We have discussed this at length. Deputies Donnelly and McDonald are proposing the deletion of the entire list of exempt and part-exempt bodies. I do not propose to accept the Deputies’ amendments.
I do not believe one could have a commercial State sector operating to a completely different set of rules from its competitors. It would hamstring their capacity in achieving the best interests of the shareholder, namely, the citizen. They have to be allowed to operate on an equal footing with commercial companies which are not subject to freedom of information.
I had long discussions with my friend and colleague, the Minister for Finance, on NAMA, the National Asset Management Agency. I accepted the case he made that the disclosure of full information relating to the remuneration of NTMA company staff would place the body at a serious commercial disadvantage in recruiting and retaining expertise. Many people are migrating out of these bodies. As the economy recovers, pay rates in the private sector are robust in comparison to pay rates in the NTMA and NAMA. I have had discussions about improving taxpayers’ knowledge of remuneration rates in the agencies.
The Deputy is aware that in the annual report and accounts the NTMA provides information on remuneration of top level staff on an anonymised basis on a €50,000 width band. It sets out how many are in X category, X category plus €50,000, Y category plus another €50,000 and so on. In keeping with the need to promote greater openness on pay I requested that the NTMA should take further steps to disclose additional information on remuneration levels. I suggested that those bands would be reduced to €25,000. In discussions, the NTMA has agreed to that, and to reduce the pay bands in its 2013 annual report to reflect that. I do not think I am in a position to accept the amendment in that regard.
I move amendment No. 92:
In page 75, between lines 7 and 8, to insert the following:The purpose of the amendment is to provide an exemption from the Revenue Commissioners in relation to certain records that they may hold relating to section 812 of the Taxes Consolidation Act which deals with tax avoidance. I have a long speaking note but, in essence, I do not want to provide the tax avoider with a blueprint on how to avoid tax.
“(w) The Revenue Commissioners, in relation to a record that relates to the formation of an opinion under section 811 of the Taxes Consolidation Act 1997 that a transaction is a tax avoidance transaction, save as regards a record that was created before—(i) the date on which an officer of the Revenue Commissioners has notified a person that the transaction is the subject of enquiry for the purpose of considering whether to give, in relation to it, a notice under that section 811 of an opinion to the foregoing effect, or
(ii) if it falls earlier than the foregoing date, the date on which a notification under section 811A of that Act was received by the Revenue Commissioners in relation to the transaction.”.
I move amendment No. 93:
In page 75, between lines 12 and 13, to insert the following:
“(x) The Residential Institutions Redress Board, in the performance of its functions under the Residential Institutions Redress Act 2002, other than insofar as it relates to records concerning the general administration of those functions;
(y) The Residential Institutions Redress Review Committee, in the performance of its functions under the Residential Institutions Redress Act 2002, other than insofar as it relates to records concerning the general administration of those functions;”.
I have taken a long time with the legislation. Sometimes the Houses of the Oireachtas are criticised on the slow passage of Bills but the Bill has been significantly improved by the work of the Members of the House, in particular on Committee Stage. I have given very careful consideration to all the very strong cases made. I responded in very careful terms to very good amendments tabled by the Deputies opposite, including looking at international best practice and providing reports and documentation to the Opposition in terms of what happens on the international stage in relation to such legislation. As a result, the FOI Bill that is about to pass is in very good order. It is an exemplar among FOI regimes. I know there are tweakings that others would have liked. It may well be that I will have to come back to the House depending on amendments that arise in the Seanad but it is my objective to have the regime in operation for next year. I thank sincerely the Deputies opposite for their involvement and hard work in advancing the legislation.