Mick Wallace (Wexford, Independent)
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40. To ask the Minister for Public Expenditure and Reform his views on the 40-plus agencies that are either fully or partially exempt from freedom of information requests; his further views on whether these exemptions are in the public interest with regard to accountability and transparency; if he will consider conducting a review of the agencies that benefit from such exemptions; and if he will make a statement on the matter. [40247/17]

Mick Wallace (Wexford, Independent)
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I am looking forward to the Minister filling me with hope. It will not even cost him money to do it.

The 2014 Freedom of Information Act was heralded as ground-breaking and progressive legislation by the former Minister for Public Expenditure and Reform. At the time, we pointed out many problems with it, but they were obviously ignored. It is three years since the Act was put in place and these problems have now come to fruition in many areas and practice.

What are the Minister’s views on the 40 or more agencies that are either fully or partially exempt from freedom of information requests? What are his views on whether these exemptions are in the public interest with regard to accountability and transparency? Will he consider conducting a review of the agencies which benefit from such exemptions?

Paschal Donohoe (Dublin Central, Fine Gael)
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The Freedom of Information Act 2014 introduced a modernised, consolidated, restructured and more accessible system. It repealed the 1997 and 2003 freedom of information Acts. The Act extends freedom of information to all public bodies and automatically includes newly established bodies, unless specifically exempt.

As part of the analysis and consultation during development of the Freedom of Information Act 2014, the inclusion of bodies such as commercial State bodies and regulatory bodies was considered in consultation with relevant Ministers at the time.

Part 1 of the first Schedule to the 2014 Act lists the bodies partially included and Part 2 of the first Schedule lists the bodies exempt from the Act.

The agencies included in Part 1 are largely those with regulatory, quasi-judicial or financial functions where scope of the Act is limited to certain functions only. Decisions were made on the basis of needing inter aliato protect examinations or investigations, tribunals and dispute resolution functions, as well as to protect personal information and to comply with certain secrecy obligations under EU rules.

With regard to the commercial State bodies listed in Part 2 of the Schedule, important considerations informed and guided the approach taken. The assessment was that, in general, and consistent with the approach adopted since this legislation first came into effect in 1998, commercial State bodies should not be subject to freedom of information requirements. The rationale for this approach is the risk of the uneven competitive market environment that would be created in circumstances in which commercial State bodies operating in a competitive market were subject to freedom of information but their private counterparts were not. Notwithstanding this, the Government decided that State companies operating in a monopoly market, should be and have been made subject to freedom of information.

I am satisfied that the reasons for the full or partial exemptions stand and are consistent with the public interest. I hope the Deputy will acknowledge 600 bodies are now encompassed by this legislation.

Mick Wallace (Wexford, Independent)
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There are many bodies still not open to scrutiny. The Minister says exemptions are proposed in the public interest so as not to affect a body's ability to perform its core functions and commercial performance. I am not sure this complies fully with EU rules. We have been in a battle with Bord na Móna for several months regarding its employment of Accenture. It has confirmed to me that it entered into several contractual commitments with Accenture in 2014 but refused to give me the cost of each contract stating they do not come under freedom of information and, accordingly, the company is not obliged to give me the information. I have checked this with the EU. An EU procurement directive states contract information, including the cost per contract, of commercial State bodies must be published.

Will the Minister check whether commercial state bodies which do not disclose cost of contracts are in breach of EU procurement directives? Sadly, Bord na Móna stopped talking to me as well.

Paschal Donohoe (Dublin Central, Fine Gael)
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I play no role in freedom of information decisions made within this legislation. If I were to play a role in this, it would undermine the whole spirit of the legislation. I cannot comment on an individual decision made by Bord na Móna and the inquiry the Deputy put in. I imagine the reason it made that decision is that the freedom of information unit in Bord na Móna would have contended that making that information available to the Deputy might have caused commercial difficulty for the organisation and other tendering processes which it has under way, in turn undermining its ability to get good value for the taxpayer. That is a general principle established in the commercial State sector in tendering and procurement processes. I expect Bord na Móna is fully compliant with European Union law in this area. As I said, its evaluation of commercial sensitivity may have played a role in the decision made. However, as I said, I play no role nor would seek to play a role in any individual decision made because that would undermine the whole thrust of this legislation.

Mick Wallace (Wexford, Independent)
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The Minister presumes the company is in compliance with the EU procurement directive. Will he check it for me because we are of the opinion it is not?

We put in many freedom of information requests. Sometimes we get satisfactory answers; sometimes, we do not. Recently - a while back - I put in a freedom of information request about NAMA’s freedom of information system to see how it works on a day-to-day basis. Pádraig Corkery, the freedom of information manager in NAMA, on a request I put in on Project Eagle stated:

The freedom of information is from Mick Wallace, so I am trying to close off any angles of attack in advance.

That does not sound like a State agency that is interested in transparency and accountability.

In another example, I put in a request to the Central Bank about the Ulster Bank global restructuring group and all emails regarding it from 2016 to the present day. It charged me €250 to retrieve information. When the Act was introduced in all its glory by the former Minister, we were told we were getting world-class legislation and it was the best thing since fried bread. I believe the Minister should have another look at the legislation. It is not perfect and could be improved in the interests of transparency and accountability, as well as the public interest.

Paschal Donohoe (Dublin Central, Fine Gael)
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Again, I cannot comment on individual decisions made under freedom of information legislation.

As I explained, if I were to get involved in that, it would challenge the non-political nature of how these decisions are made in the first instance. The Deputy named an individual who works for the freedom of information unit in a particular organisation and read out an email he received relating to a decision that organisation was making. However, there might well be another context or there might be other matters relating to that decision of which I am not aware. For that reason, I will not comment on an individual decision that has been made. If the Deputy has concerns about the implementation of the legislation generally or a concern that it is not being implemented in the way the Oireachtas intends, I am open to having a discussion with him about that and hearing his views on the matter, but not about individual decisions because that would not be appropriate to this legislation.

Mick Wallace (Wexford, Independent)
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I did not ask the Minister to comment on individual situations but to review the legislation.

Eugene Murphy (Roscommon-Galway, Fianna Fail)
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The question has been answered. If the answer is not to the Deputy's satisfaction, there are other ways to deal with it.