Michael McDowell (Dublin South East, Progressive Democrats)

A number of amendments to section 55(2)(h) have been proposed. Amendment No. 75 takes account of amendments Nos. 76 and 77, tabled by Labour Party Senators and, as discussed with the Parliamentary Counsel, may meet their concerns. I refer to the reference to personal information relating to a deceased person and the need to insert the word "otherwise" in the paragraph. At this stage, it might be helpful to refer to amendment No. 89, which will be discussed shortly. It defines personal information for the purpose of this section as including personal information relating to a deceased person.

The relevant subsection in the Bill refers to personal information as defined in the Freedom of Information Act 1997. The definition of personal information in the FOI Act does not refer specifically to deceased persons but section 28 of that Act, which deals with the issue of the refusal of information on the basis of personal information, includes a reference to information relating to a deceased individual. Generally speaking, personal information in the FOI Act is taken to include deceased persons so, in one view, there is no need to provide for a specific reference in this Bill. However, I am inclined to the view that for the purpose of clarity a provision as proposed relating to a deceased person should be inserted in the subsection by reference to the 1997 Act. As I have said, amendment No. 89 provides accordingly.

There is no need however to refer to a missing person as a person's status is not affected by his or her location so such persons would have the benefit of the protection of personal information in the FOI Act. It also seems to me that the subsection could usefully be simplified and, for this reason, I propose an amendment of the words as defined in the Freedom of Information Act 1997, "obtained in the course of a criminal investigation", should be deleted. Thus, there would be no need for the proposed amendment.

I do not propose to accept the Labour Party group's third amendment, which is to replace the word "and" with "or". As the section as a whole stands, a double test has to be satisfied, which refers to the publication of personal information and harm, not or harm. My amendment proposes that it has to be harmful and be consistent with this; there is a double test before a person can be found guilty. If the amendment is accepted it would have the effect of broadening the scope of the offence and I would not be happy to do this in circumstances in which the potential penalty is quite severe; up to seven years imprisonment. This is commensurate with a serious breach and the double test should be retained in my opinion. In this context, section 55(2)(h) reads, "results in the publication of personal information and constitutes an unwarranted and serious infringement of a person's right to privacy." The intention is that the definition of personal information will be inserted in a new subsection (8), which we will discuss on amendment No. 89.

I hope that the Labour Party Senators agree that this meets their concerns in respect of amendment No. 76, which concerns personal information relating to a deceased person. I thank the Labour Party Members for drawing these matters to my attention by way of the amendments tabled to this important area of the law.