Kathleen O'Meara (Labour)

I move amendment No. 8:

In page 13, subsection 3(a), lines 26 to 27, to delete "to the public interest or".

Again in this section the devil is in the detail. This section refers to secrecy, which is very important in the context of the Defence Forces. I suppose it is the Minister's right to withhold information. The principle is very important and clearly must be contained in the legislation. I am concerned over the extent of the Minister's authority to withhold information. Section 10(3)(a) states: "The Minister may give notice in writing to the Ombudsman, with respect to any document ... that would, for the reasons stated in the notice, be prejudicial to the public interest or to security."

This relates to defence and military matters. One can understand that the Minister should have power to withhold information, documents, etc. in the interest of security. I am concerned at the inclusion of the words "public interest" in this section. I note that no definition of "public interest" exists. We approached this from a different angle when discussing Senator Brian Hayes's earlier amendment on the role of the ombudsman. At the time I commented that a public interest override should exist and on Report Stage I intend to table an amendment giving the ombudsman that power.

In this section the public interest is referred to in an entirely different context by stating that the Minister may withhold information in the public interest. However, I assume the Minister must decide what is the public interest, as the legislation does not do so. This may be defined in other legislation. I know that during the drafting of the freedom of information legislation by my colleague, former Deputy Eithne Fitzgerald, with whom I worked at the time, much discussion took place about having a public interest override in the context of whistleblowers as referred to by Senator Brian Hayes. However, this section gives the Minister the authority to decide what he or she would withhold in the public interest. That is a very broad power and should not be contained in this legislation; hence my amendment to delete it.

The amendment does not propose changing the Minister's right to withhold information in the interest of security as clearly that provision makes sense. However, I am concerned that the Minister is being given far too much power to withhold information from the ombudsman.

Section 10(3)(a) states, "The Minister may give notice in writing", and not, "shall give notice in writing." What would happen if the Minister does not give notice in writing? How is the public to know what is being withheld? It is important that the public has a way to know what has generally been withheld. This would allow somebody, probably the ombudsman, to let us know in response to a query the extent of withholding of information by the Minister in any particular complaint.