Noel Ahern (Dublin North West, Fianna Fail)

The Government will not be accepting the Private Members' Freedom of Information Amendment Bill 2008. The Freedom of Information Act 1997, as amended in 2003, provides the right balance between facilitating public access to information held by public bodies and allowing Government to function effectively. This is the aim of the Act, as set out in the Long Title which states that it is:

An Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies.

It is almost exactly ten years now since the 1997 Act came into force. Over that time, more than 130,000 requests have been made to public bodies, of which the large majority have been granted. The range of requests covers the whole span of Government activities and includes requests for both personal and non-personal information, requests from members of the public, business, journalists, staff members of public bodies and elected representatives.

When the Act came into force, it applied to just 67 bodies. At regular intervals since then, the Government has extended the remit of the Act, first by extending it to local authorities and health boards, then to voluntary hospitals and subsequently to numerous other State agencies, bodies and institutions, including those in the enterprise, broadcasting and third level education sectors. In 2006 we saw the greatest ever extension of the Freedom of Information Act involving some 137 bodies. This means that more than 520 bodies are now part of the freedom of information regime. The new bodies covered by the 2006 extension include county and city enterprise boards, education support centres, regulatory bodies in the health sector and a wide range of other bodies. Full details are available on the Department of Finance freedom of information website. By extending freedom of information throughout the public service, the Government has ensured it has become a permanent and valuable feature of public administration. Work is ongoing in the Department of Finance for extension of freedom of information to a further group of public bodies later this year.

Over the past ten years, freedom of information has brought greater openness and accountability to the conduct of public business. In this regard, it has complemented a range of other measures designed to increase public confidence in the institutions of the State, including standards in public office and ethics legislation.

The success of freedom of information cannot be judged solely by statistics, a point that should be carefully considered when quoting the figures. It was anticipated before the Freedom of Information Act was introduced that it would serve to encourage the release, on an informal administrative basis, of information that would previously not have been readily available. There are many examples of this, including universities and other third level education institutions releasing students' examination scripts without requiring students to invoke the Act formally. I understand three quarters of requests for personal records from the Health Service Executive are dealt with informally, with requesters not being required to go through the formal freedom of information process. The same is true of many Departments and also the Houses of the Oireachtas. As officials know that people have the right to the information, rather than dragging them through the process they co-operate and give the information earlier. We are getting that culture of co-operation and openness established. Figures for freedom of information requests can be misleading. It is not related to charges, but to the fact that the culture of most agencies and Departments now giving the information informally without putting people through the formal system has become established

The years of freedom of information have coincided with huge advances in information technology which have facilitated the publication of information by public bodies to a degree that could not have been envisaged when the Freedom of Information Act was first introduced. People can also access much of the information themselves. The websites of Departments and public bodies now contain vast amounts of up-to-date, easily accessible information on a vast range of Government activities. I would encourage Senators to look at the excellent citizen's information website hosted by the Department of Enterprise, Trade and Employment which is regarded as an example of best practice in the EU. It provides one portal through which the citizen can access a very wide range of public information covering services and entitlements from across a range of different State agencies.

In 2002, after the Freedom of Information Act had been in operation for four years, the Government asked a high level group of Secretaries General to review the operation of the Act. Following the report of this group, the Government introduced an amending Bill which made a number of important changes to the 1997 Act. The amending Bill was debated at great length in both Houses and the Freedom of Information (Amendment) Act came into operation in April 2003. One of the key changes in the 2003 Act was the extension of the period of protection for Government related records from five to ten years. In its report, the high level group had stated:

[A]s experience is gained in the operation of the Freedom of Information Act, it is evident that a five year moratorium on the release of Cabinet records is too short. It does not give Ministers the assurance that they require to commit views freely to the record if those views are to be divulged in such a relatively short space of time.

The Government agreed with this view. For Government to function effectively and in line with the doctrine of Cabinet responsibility, Ministers must be able to express their views fully and frankly without feeling inhibited by the risk of disclosure of their views after such a short time. As the Minister for Finance pointed out at the time, by international standards a ten-year limit was still liberal and at the lower end of limitations for Cabinet related records.

Another important amendment in the 2003 Act was the introduction of upfront fees for freedom of information requests for non-personal information. While the original Act had provided that fees be charged for freedom of information requests for non-personal information, the fee regime was not working properly. Four years of experience had shown that the cost of processing an average freedom of Information request was considerable. It was estimated at the time by the Department of Finance as being €425. There were also cases of individual requesters making requests where the costs involved were clearly an inappropriate use of taxpayers' money. There were different examples of this. I could mention the example of a request for access to the diaries of a number of civil servants and Ministers that involved reading through thousands of pages of documentation. They had to be read, assessed and considered for release with personal or sensitive material deleted. One individual made 466 requests, 101 applications for internal review and 35 appeals to the Information Commissioner.

The 2003 Act provided that the Minister could set the level of the fee through regulation; it was subsequently set at €15, with a reduction to €10 for medical card holders. While this in no way reflects the administrative cost of processing an FOI request, I am satisfied it strikes a fair balance between recognising the administrative burden of administering the legislation and at the same time facilitating access to information. The fee has not been increased since 2003.

The 2003 Act also contained a number of other carefully considered measures designed to provide an enhanced protection in key areas of Government and parliamentary activity, including records relating to international relations, security and defence. It also included a series of technical measures to improve the operation of the Act.

I think it is fair to say that ten years on, FOI is now well embedded in our public administration and overall it is operated effectively by public bodies. Its implementation is well supported by ongoing investment by Departments and public bodies in training and other supports, including the central policy unit of the Department of Finance, which has a key role in overseeing the implementation of the Act across the public service. I believe the Act, as amended, strikes the right balance between the public's right to know and the effective functioning of the administration.

The Private Member's Bill before the House today seeks to row back the changes that were made in 2003. These changes were fully discussed in both Houses in 2003, they were based on careful consideration and experience and I have already recalled the background to them regarding the protection of Government records and the provision for up-front fees.

As regards the proposal that the definition of public bodies should be changed so the Act is automatically applied to a number of bodies, I do not agree this would be a useful approach. Under the Freedom of Information Act, the Minister by regulation prescribes bodies that are covered by FOI and the Act provides a definition of the bodies that are eligible for inclusion. This approach was introduced in the original Act to allow for case by case consultation with public bodies to ascertain the degree to which their functions should be covered by FOI, for example the Information Commissioner is not subject to FOI for her investigative functions, and to allow a lead-in time for preparation and training in the public bodies involved to ensure the Act is properly applied.

As regards the proposal to include additional non-disclosure provisions in the Third Schedule, the Act already provides, at section 32, a mechanism for the review of non-disclosure provisions by a joint committee of the Houses. The committee carried out such an examination in September 2006 and sought the views of the Information Commissioner and of relevant Ministers. It prepared a report that recommended the inclusion of certain non-disclosure provisions in the Third Schedule and Departments have been instructed to implement this recommendation. Therefore, this is an area that has been already thoroughly examined by the joint committee.

The Bill also contains a number of amendments, drawn from the Information Commissioner's report of March 2007. Many of these are technical in nature and relate to the practical operation of the Freedom of Information Act. However, having considered the Information Commissioner's report, I do not agree that any further technical amendments to the Act are required at this time. The operation of the Act is kept under continuous review by the central policy unit in the Department of Finance, which co-ordinates the FOI networks across the public sector, and I am satisfied the Act operates satisfactorily. If difficulties emerge in the future that require legislative solutions, they can be addressed.

To conclude, we are ten years down the road and I believe we have in place a strong FOI regime that is supported by robust administrative arrangements for ensuring proper implementation of the legislation. The legislation achieves the correct balance between making information available and providing effective Government, including through the fee regime. It is working well and change is not necessary.