Brendan Howlin (Wexford, Labour) | Oireachtas source

I fully appreciate Senator Quinn’s sentiments that where a non-FOI body, whether public or private, carries out a service on behalf of an FOI body, the records relating to the service should be subject to FOI. On receipt of the Senator’s amendment I requested confirmation from the Office of the Attorney General that "person" as referred to in the definition of service provider on page 14 of the Bill does include a company within the meaning of the Companies Act. Therefore, the intent of the amendment, that "person" would capture the word "company", is already, on the advice of the Office of the Attorney General, the position.

Amendment No. 11, tabled by Senator Byrne and other Fianna Fáil Senators, raises the issue of Bus Éireann's school transport operations. It was always intended that the Bill would include Bus Éireann school transport services carried out on behalf of the Department of Education and Skills. I advised that the service would be covered within six months of the Bill's enactment through the restoration of the application of FOI records held by service providers in so far as the records related to a service provided under contract to the Department. This was the original construction of the Bill. However, a recent High Court judgment determined that the Department of Education and Skills does not have a contract with the transport providers but has what the High Court determined to be an administrative arrangement - not a contract - with Bus Éireann for school transport services. On foot of this judgment, I amended the definition of service provider in section 2 on Report Stage in the Dáil to ensure that school transport services provided by Bus Éireann to the Department of Education and Skills would be subject to FOI. The amendment I made in the Dáil addresses the concerns of Senator Byrne and his colleagues.

On amendment No. 18, also tabled by Senator Byrne and his colleagues, it would not be possible to provide a list of bodies that might provide services under contract to an FOI body into the future. It is deemed unnecessary to provide such a list, since the provision came into operation subsequent to the 1997 Act, and I am not aware of any difficulty that has arisen since. It would be an extraordinary thing to try to project which bodies might conceivably provide services into the future.

Amendment No. 35 seeks to remove Bus Éireann from the list of exempt bodies, and the House knows my view on this. Where there is a unique provider of a service, such as the school transport service, it is subject to FOI, but where it is in direct competition with the commercial sector it would seriously disadvantage a State body if it uniquely were subject to FOI. Therefore, I am not extending FOI to the commercial semi-State bodies that are competitive.