Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I thank the Senator for raising these two issues in his amendment relating to an appeals and complaints mechanism and a review of the legislation. I will address both issues.

As regards the first point, I understand, and I think we all know from our engagement on this issue over the past two years, in my case, and for a lot longer in the case of the Senator the level of mistrust that has built up among adopted people regarding their engagement with some of the agencies that have provided information in the past. I understand there is real hurt and disappointment and that the actual experiences have often been very sub par. Part of that has to do with the legislative confines and the lack of clear legislation these agencies and bodies were operating on, but it was not always that. We know that there are examples where just the practice and the personal touch was bad in terms of how information was conveyed in callous ways. This legislation is all about changing that. It is about providing that changed legal basis but, as we have said before, there is more than a change in the legal basis. There has to be a change in mindset. I have spoken about the guidelines whereby the Minister is given power to issue under this legislation to these various bodies in terms of how they carry out their functions under the legislation. I have also spoken about the implementation group my Department is leading with Tusla and the AAI, again talking about how the approach should be release of information unless there is a clear legal reason not to do so rather than the restrictive approach that has happened so far.

As this legislation requires the full and unredacted release of all information, we do not see a situation where an appeals process is needed because, under this legislation, the answer is always "Yes" and the information is released. There is no discretion of the data controller to be appealed because, if these bodies have the information, the relevant person has a right to that information and that information might be released. In terms of freedom of information, FOI, or even a subject access request there is discretion on the data controller who must make a decision and that can be appealed. In this case under discussion, there is no decision to be made. If the information exists, it must be released. That is why I do not believe an appeals mechanism is necessary.

That said, as the Senator will know, we have the power to write guidelines on how the bodies and agencies act under this legislation. We will stipulate that they must operate an internal review process and an internal complaints mechanism. That provision will be set out in guidelines. I do not think that requires a legislative basis and we can do it within a guidelines framework. Of course, all of these bodies and institutions are regulated by the Office of the Ombudsman. If someone is unhappy with how a State agency conducts its tasks, a complaint can be made to the Office of the Ombudsman.

On the matter of issuing a report to the Houses of the Oireachtas, section 70 provides for a review of the Act at two years post enactment. I believe that speaks to the centre of what Senator Boyhan is talking about. Originally in the legislation the term was four years and we shortened it in the Dáil to two years. I believe it is important that some time is given for the processes of this legislation to work and operate in order that we can assess how they do over a period.

That being said, the detail of what the report will look at, which Senator Boyhan has put forward in his amendment, is more significant than the current text of section 70, in particular the idea of laying the review before the Houses of the Oireachtas. That aspect is not referenced in section 70, as I have outlined, so I will take that part of it in terms of putting more detail into the review mechanism. We will take that away and I will look to see if I can bring forward some broadening of the review on Report Stage.