Brendan Howlin (Wexford, Labour)
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I move:

That Dáil Éireann approves the following Order in draft:Freedom of Information Act 2014 (Effective Date for Certain Bodies) Order 2015,copies of which Order in draft were laid before Dáil Éireann on 10th March, 2015.

I will explain to the House, for the benefit of Members who were not present at the committee, what I have in mind. I will deal first with the effective date order. In the context of freedom of information, effective date means the retrospective date back to which records are available from an freedom of information body. While the standard effective date for new bodies under the 2014 Act is 21 April 2008, which is a long way back, I have the power under the Act to set a different effective date by order. I have received various submissions, but the only applications I have agreed and propose to provide for by way of order are those from the Refugee Applications Commissioner and the Refugee Appeals Tribunal, for which I am proposing an effective date of 14 October 2014, which is the date the legislation was brought into force, and the Private Residential Tenancies Board, for which I am proposing an effective date of 21 April 2012. The rationale for my decision is that these two organisations hold large volumes of information and for them to process freedom of information requests back to 2008 would impose a significant administrative burden and lead to delays in the administration of their core business. As the bulk of the records held by both bodies are personal in nature, any personal records will be available to the individual to whom they relate and would not be affected by my decision to allow a later effective date.

On the exemptions order, a generic definition of what constitutes a public body was included in the 2014 Act and this enables freedom of information to apply to the widest possible definition of public bodies. As a result of this approach, by way of explanation to Members who were not in the committee meeting, up to now, freedom of information applied to bodies that were specifically included. Under the new law that we enacted last year, everyone is in unless specifically excluded by the Oireachtas through a positive vote. An order will be needed if a body is to be made exempt from freedom of information. I have only approved exemptions where it is clear that the application of freedom of information to those bodies, in whole or in part, would affect their ability to perform their core functions or, for example, in the interests of the security or financial position of the State.

I propose to exempt the Irish Red Cross, which, because it was established under legislation, inadvertently came under the definition of a public body, as I explained to the committee yesterday. I will, however, revisit this in the context of making non-public bodies, including charities, amenable to freedom of information in the future. The Shannon Group will also be exempt because it operates in a fully commercial environment. The reason it needs to be exempted now is that it came into being after the enactment of the legislation. Certain records of the Strategic Banking Corporation of Ireland, SBCI, will also be exempt, whether they are held by the SBCI itself or the National Treasury Management Agency, to reflect the level of confidentiality expected of such transactions in the marketplace. Records relating to the new legal cost claims management functions conferred on the NTMA, which relate to costs of third parties in the context of the Mahon and Moriarty tribunals, will also be exempt. I also propose to exempt Oifig Choimisinéir na dTeangacha Oifigiúla, to put that office in the same position in relation to freedom of information as other ombudsman's offices. I am also making a technical change to the exemption for schools to ensure all schools, other than education and training board schools, will remain exempt from freedom of information, as was the original policy when we enacted the law.

I am bringing these motions to the House today seeking a positive resolution in order for me to be authorised to sign these orders.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I am pleased we are having this short debate on these U-turns in respect of freedom of information being proposed by the Minister. The Government's original plan was to have it taken here without debate, but we said there had to be a proper debate and have succeeded in getting five minutes for each of the Opposition speakers, which is welcome and is better than where we were. I acknowledge we had an extensive debate yesterday at the committee meeting. The Minister came into office and trumpeted himself as the saviour of freedom of information. He said he was going to restore it and amend the various butchering procedures that had happened on previous occasions. Within a few short months, and less than six months after the legislation came into effect, he is rethinking his policies and rowing back on a number of measures. If these measures had not gone through, we would not have this rowing back of freedom of information.

The Minister is excluding the performance of the new Strategic Banking Corporation of Ireland and aspects of the National Treasury Management Agency's work. He is also excluding the Shannon Group in its entirety. I am looking at the Minister's script from yesterday, which states that "given the very important responsibilities assigned by Government to the Shannon Group in terms of regional development in the mid-west region, it is obviously critical to ensure that the organisation is not put at a commercial disadvantage". I can understand that in respect of Shannon Airport and so on, but if it is a regional development agency, like a large version of Leader companies or other development companies like the IDA or Enterprise Ireland, which come within this legislation, the regional development aspect should not be excluded.

The Minister said the Irish Red Cross was inadvertently included and I understand there are many difficulties at senior level in that organisation. It is a little dysfunctional on the managerial level at the moment and probably needs a little extra time. There is provision in the legislation to extend the date by which organisations come under freedom of information legislation to later in the year, namely, to next October. He is taking that particular option for EirGrid and perhaps some other bodies as well. I proposed yesterday that this might have been a better measure for the Red Cross. Restrictions also apply to the Coimisinéir Teanga. That is fine in terms of the investigations the office carries out.

Some of the critical issues are the change in the official date by which information can be obtained when the new regime comes in. It is scheduled to come into effect for many organisations on 14 April, which is just a few days away, and the Minister is making changes to this at the 11th hour. The reason he gave in the briefing note for this change in the effective date was that the Private Residential Tenancies Board is in the process of taking on significant additional responsibilities in taking security deposits of approximately €1,000 per tenancy from 300,000 tenants and is dealing with new approved housing bodies, which will comprise 28,000 households. As I said yesterday, I understand that has not yet commenced, so I do not see how the timing of the Freedom of Information Act impacts on that issue. The Minister said it was the date from which records were computerised, but people are entitled to access non-computerised or computerised documentation and there should not be a different date depending on whether it is computerised.

I have a difficulty with changing the effective date for information from the Refugee Applications Commissioner and the Refugees Application Tribunal. In the briefing note, the Minister said he only considered making these changes having had requests from the line Ministers and Departments. He said he only approved a few, but he did not indicate how many he refused. It might have helped him to tell us all the ones he refused and to show us how he tried to keep freedom of information-----

Brendan Howlin (Wexford, Labour)
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The Deputy will have to make an freedom of information request.

Seán Fleming (Laois-Offaly, Fianna Fail)
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Exactly. I will have to go to all 14 Departments and there might be a search and retrieval fee. The Minister acknowledged in the briefing note we received that in the case of the refugee bodies, an additional concern communicated by the Department of Justice and Equality was that third-party freedom of information requests would have the potential to delay judicial reviews of the organisation's decision-making, giving rise to significant additional costs in direct provision. That opens up a whole new vista. Is that the real reason behind it?

In light of those reservations and objections to these changes to freedom of information, Fianna Fáil will be voting against these motions.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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Like Deputy Sean Fleming I oppose both motions. However, I wish to zero in on what I believe to be the most troubling development in respect of the motions, that is, the Minister's proposal to change the effective date of FOI for the Refugee Applications Commissioner and the Refugee Appeals Tribunal from April 2008 to October 2014, which is six months ago. The Minister wants to create a scenario in which third parties can only access data information and documents from the Refugee Applications Commissioner and the Refugee Appeals Tribunal up to six months ago.

It is farcical - the Minister has not set it out here - but in the briefing document to which Deputy Sean Fleming referred and which was circulated to us the request was made by the line Department, the Department of Justice and Equality, not by the agencies, on the very spurious grounds that it had concerns around third party access to personal data. That is rubbish: that was never going to happen. People's personal information is protected. The other concern was that third party FOIs might delay judicial reviews of the organisation's decision making and give rise to significant additional costs in direct provision.

We have in this jurisdiction an absolutely disgraceful regime for dealing with refugees and asylum seekers. Not only is it disgraceful in its shape and resourcing and incredibly slow, it is above all shrouded in secrecy. The Minister and I know that one of the big criticisms of the current Ombudsman and the previous Ombudsman was that they did not have oversight of this whole area of policy and decision making. There are people who have languished in direct provision for many years and have raised their children in direct provision. Children have been injured and damaged in direct provision because they do not have the basic facilities that any child needs and deserves. We know this because at this stage it is very well document and because many of the citizens living in direct provision have taken the trouble to come to the Oireachtas to tell their personal stories. The Minister with responsibility for freedom of information thinks it appropriate to add to the shrouded secrecy around this scandalous area of policy.

The Minister knows that within the system of direct provision and within the entire system of asylum in the State a scandal has slowly and painfully unfolded under our watchful eyes. We know that the system is banjaxed. We know the system is failing those who are engaged with it. We know all of that and we know that it is all terribly secretive and rather than shine a light on this area the Minister wants to maintain that secrecy. I do not buy the rationale forwarded to him by the Department of Justice and Equality for making this change. I doubt that the Minister buys it as I would credit him with more basic intelligence than that. The question then arises, what is there to be hidden?

Individuals can access their personal records and data, one would expect that, but why cannot third parties such as advocates, politicians, perhaps, journalists, analysts and so on have access to this documentation and data-----

Brendan Howlin (Wexford, Labour)
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They can.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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----- going back to 2008? What is the purpose of all of this? I said to the Minister in the committee that this is not only a very bad idea, it is extremely alarming, and I am disappointed that he would bring forward such a motion at the behest of a Fine Gael Minister for Justice and Equality. Far from enhancing freedom of information or this area of policy it sets the clock back.

Michael Kitt (Galway East, Fianna Fail)
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I understand Deputies Finian McGrath and Mick Wallace are sharing five minutes.

Finian McGrath (Dublin North Central, Independent)
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I thank the Leas-Cheann Comhairle for the opportunity to participate in this important debate on the Freedom of Information Act. I agree with many of my colleagues that it is important that we have this debate. Freedom and information are two very important elements in any democracy that claims to be open and transparent. Wherever we see a Government or Ministers rowing back we have to focus on it. I support the concept of respect for an open democracy and transparency for different Ministers and different Departments and, generally, in regard to reforms in the public sector. There are genuine concerns about changing the effective dates.

The Government was elected on the promise of reform and change, an issue on which we need to up our game in terms of this issue, particularly 12 months out from a general election. We need to ensure that the reforms put in place are effective. Freedom of information is a key issue.

The Minister mentioned the Refugee Applications Commissioner and the Private Residential Tenancy Board for whom he is proposing an effective date of 21 April 2012. In the current climate there is a huge crisis in terms of many families who are being intimidated by landlords and put out of their homes. Yesterday, a lovely family in my constituency, whose rent was increased by 47%, was told they have to be out of their home by June. While we have organisations who support these people, some landlords are running riot over tenants and exploiting many people.

I take the Minister's point about a significant administrative burden and the delays in the administration's core business but we have to focus on the important issue in this debate, the freedom of information. Direct costs is also dealt with. We know there is a history of this public body having major issues and also the Shannon group. There are major concerns coming from people and Opposition Deputies. That we are having this debate is a step in the right direction because previously there was an attempt to close it down.

Mick Wallace (Wexford, Independent)
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If one was investigating the culture of secrecy and the absence of transparency in Ireland there would be no need to go much further than the tool one needs to carry out that investigation. The Freedom of Information Act is a travesty paraded as real democratic reform in action, to quote the Minister. Only under pressure from civil liberties groups and after being reminded of election promises and the OECD and Council of Europe recommendations were the upfront fees abolished. What we have now is a system whereby one could be charged from €100 to €500 for a freedom of information request if it takes in excess of five hours to fulfil. This is not best international practice. For example, the UK legislation provides for public authorities either to charge for or decline requests for information that would cost the public authority either more than £600 for central Government or £450 for other public authorities to deal with the request. Furthermore, the list of exempt bodies makes a mockery of the Minister's claims. There are already 38 explicitly exempt bodies and the records of 35 bodies and institutions are only partially included. If the Minister considers that the media and the public seek too many freedom of information requests, if there was less secrecy in Ireland they would not have to seek so many FOIs. Of course, there are some bodies that merit exclusion from FOI for reasons of national security and individual privacy but the almost entire exclusion of the police force from the remit of FOI requests is a disaster and the amount of newly available information is minuscule to the point of being of little or no consequence.

On this issue, the Bill knowingly flies in the face of a recent UN report on compliance with the International Covenant on Civil and Political Rights. The Office of the Director of Public Prosecutions acts as a secret society. The National Asset Management Agency, NAMA, and the National Treasury Management Agency, NTMA, are inaccessible. The Irish Bank Resolution Corporation acts in the shadows.

The motion before us is simply more of the same, a further extension of the uselessness of Ireland's freedom of information legislation. Thomas Jefferson said that if democracy is to flourish, every day a citizen must be a participant in the government of affairs. This Bill ensures that genuine democracy is not possible in Ireland. If this is real democratic reform in action, the aim of the Minister's reforms must be to abolish democracy.

Brendan Howlin (Wexford, Labour)
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In response to Deputy Fleming, there are no U-turns or rethink on policy. It is exactly the policy I set out, which is to have a comprehensive review of the disaster which the Deputy's party made of freedom of information in 2003. To repeat, I am very confident that the 2014 Act I introduced will stand the test of time, unlike the abomination the Deputy supported in 2003. The changes I am proposing today are the manifestation of democracy in action, in that nothing can be excluded without the explicit will of the Houses. That is the change for which I am seeking the endorsement of the House.

Deputy McDonald talked about the effective day being changed for a couple of organisations. The answer is "Yes", and that is for practical reasons. For the first time we are bringing the Refugee Applications Commissioner and the Refugee Appeals Tribunal under the remit of freedom of information legislation in a comprehensive manner.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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It is only six months ago.

Brendan Howlin (Wexford, Labour)
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Is the Deputy going to shout me down? It will be there for all time into the future.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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I am just supplementing the facts.

Brendan Howlin (Wexford, Labour)
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We have backdated it to last year for practical reasons. As I told the Deputy yesterday, the Refugee Applications Commissioner has 4 million paper files, so there must be some level of understanding of practicality. However, from last year, everything will be amenable to freedom of information and that will be the case into the future, for the first time.

It is very difficult to listen to lectures from Deputy Fleming, who eviscerated the original freedom of information legislation introduced by a Labour Party Minister, or to listen to words such as "a shroud of secrecy" from Sinn Féin, and particularly from Deputy McDonald, who could lift the shroud of secrecy on many goings-on if she had the courage-----

Mary Lou McDonald (Dublin Central, Sinn Fein)
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Dear divine Jesus, is that the best the Minister can do?

Michael Kitt (Galway East, Fianna Fail)
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The Minister has the floor.

Brendan Howlin (Wexford, Labour)
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The Deputy can dish it out, but she cannot take it.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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Is that the best the Minister can do?

Brendan Howlin (Wexford, Labour)
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If she wished to engage in freedom of information, she has information or has the wherewithal to ensure that information can be provided.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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A Leas-Cheann Comhairle-----

Brendan Howlin (Wexford, Labour)
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Can I deal with-----

Mary Lou McDonald (Dublin Central, Sinn Fein)
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No, you cannot.

Michael Kitt (Galway East, Fianna Fail)
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Is the Deputy making a point of order?

Mary Lou McDonald (Dublin Central, Sinn Fein)
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My point is that the Minister might address himself to the changes he proposes in respect-----

Brendan Howlin (Wexford, Labour)
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The Deputy loves to make charges.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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-----of the regime surrounding refugee and asylum, not throw slurs against my character. The Minister should deal with the issue, if he can and if he can defend what he is trying to do here.

Brendan Howlin (Wexford, Labour)
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Deputy McDonald can obviously dish it out, but cannot face the truth herself.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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That is pathetic.

Brendan Howlin (Wexford, Labour)
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There are two simple proposals before the House. One is to change the effective date for two bodies, the Refugee Applications Commissioner and the Refugee Appeals Tribunal, for a practical reason. It brings the date back to last year for practical reasons, because of the volume-----

Mary Lou McDonald (Dublin Central, Sinn Fein)
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To six months ago.

Brendan Howlin (Wexford, Labour)
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It is very difficult to talk when one is being shouted down continuously.

Michael Kitt (Galway East, Fianna Fail)
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We will hear just one voice now.

Brendan Howlin (Wexford, Labour)
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The bodies were never included previously and will now be included. The other date that is being backdated relates to the Private Residential Tenancies Board and it is backdated to 2012. That is the date from which the board has electronic data available to it. Before that, it had 1.2 million paper records annually and it would simply clog up the board to require it to go back to 2008, as well as make it dysfunctional. Personal records, of course, are available. Anybody who seeks their personal records, be they an asylum seeker or otherwise, will be unaffected by this and will have access to their records.

I wish to comment on Deputy McDonald's commentary on direct provision. As she knows, a review on direct provision is taking place at present and I look forward to the result of it being sent to the Government. There are real concerns across the House and the country about the operation of direct provision.

Deputy Finian McGrath spoke about openness. Unfortunately, he has left the Chamber but this measure is part of a suite of reforms dealing with openness, including the regulation of lobbyists, freedom of information, the protection of whistleblowers and our involvement in the Open Government Partnership. All of that is important.

Finally, Deputy Wallace spoke about this being a travesty, but we do not judge ourselves by Deputy Wallace's criteria. International bodies regard this as exemplary legislation.

Mick Wallace (Wexford, Independent)
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That is not true.

Brendan Howlin (Wexford, Labour)
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I am aware that if it is not to the Deputy's liking it is not right.

The vast bulk of freedom of information requests are under five hours. The idea is to disaggregate requests. One can put in as many as one wishes, for no cost. There is no limitation. However, it makes sense when one gets the request to know exactly what is required, as opposed to receiving an omnibus request. More than 500 bodies are covered by this legislation, many of them for the first time. This is ground breaking, good legislation. Is it perfect? No, but it will be reviewed and refined into the future, like all legislation. However, most objective people would regard this as an extraordinarily important advance.

Brendan Howlin (Wexford, Labour)
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I move:

That Dáil Éireann approves the following Order in draft:Freedom of Information Act 2014 (Exempted Public Bodies) Order 2015,copies of which Order in draft were laid before Dáil Éireann on 12th March, 2015.