An Leas-Chathaoirleach:

I welcome the Minister of Finance. Before we commence, I remind the House that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage, each amendment must be seconded.

Martin Mansergh (Fianna Fail)
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On a point of clarification, can one speak once on each amendment or once overall?

An Leas-Chathaoirleach:

A Senator can speak only once on an amendment or group of amendments.

Derek McDowell (Labour)
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I move amendment No. 1:

In page 5, to delete lines 5 and 6.

This amendment is effectively to amend the Title of the Bill. Senators will recall from Committee Stage that we tabled this amendment because we felt the Bill was misnamed. It is not a freedom of information Bill because it is intended to restrict the availability of information. It consists of no fewer than several dozen amendments to the original Act, not one of which could be said to expand the amount of information available to people who make requests. We felt very strongly that to call it the Freedom of Information (Amendment) Bill was a serious misnomer.

That view has been confirmed by the way in which the Bill has travelled so far through the House and through the Oireachtas generally. We are being asked today to consider a Report Stage which does not include a single Government amendment, despite press reports in the past week that the Government is considering substantial amendments and we know the Joint Committee on Finance and the Public Service, which has a Government majority, is considering recommending amendments to Government. With that in mind, we move the amendment which deletes the Title of the Bill as it stands.

Martin Mansergh (Fianna Fail)
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I warmly welcome the Minister to the House for Report Stage. This is what might be called a wrecking amendment. The Bill could not be called anything else given that it is related to previous legislation.

Brendan Ryan (Labour)
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I second the amendment. To a certain extent I agree with Senator Mansergh that there is some wrecking taking place, but it is being done by the Government. For a long time it hid behind the fact that there were little details that needed to be tidied up, then it hid behind the report of the so-called high level group, and then it pretended that it had informally consulted the Information Commissioner and at least knew his views. We were getting close to de Valera at that stage where the views of everyone could be found by looking into the Government's heart and it really did not need to consult the experts on the legislation because it knew more about it.

We now discover that an Oireachtas committee, representative of all parties and with a Government majority, believes the legislation needs substantial amendment. I heard the chairman of that committee speak in a debate in the Dáil in which he said he could find no evidence that any disclosure of anything under the Freedom of Information Act had done the least harm to serious Government business, although it may have.

I do not believe it is true of the Minister for Finance. He takes a certain delight when evidence emerges that he has been given advice by officials and done something differently, something on which I commend him. As he has often said, advisers are there to advise, Ministers are there to take responsibility.

Martin Mansergh (Fianna Fail)
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That is what Mrs. Thatcher said.

Brendan Ryan (Labour)
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The fact that Mrs. Thatcher was wrong about most things should never be used as a dismissal of her capabilities. Her real tragedy was that she was both capable and wrong.

Martin Mansergh (Fianna Fail)
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I was just correcting the attribution.

An Leas-Chathaoirleach:

Senator Ryan, without interruption.

Brendan Ryan (Labour)
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I do not think the Minister would deny that he ever said it.

Charlie McCreevy (Kildare North, Fianna Fail)
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Many times, Deputy.

Brendan Ryan (Labour)
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That is what I thought. I thank the Minister for promoting me. I keep trying.

Charlie McCreevy (Kildare North, Fianna Fail)
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If the Senator had stayed in Athy, he would probably be a Deputy now, but probably for a different party.

Brendan Ryan (Labour)
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Think how much Cork would have missed.

Charlie McCreevy (Kildare North, Fianna Fail)
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The people of Athy and the Fianna Fáil Party might have gained.

Joe O'Toole (Independent)
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Fianna Fáil only left Kildare.

Charlie McCreevy (Kildare North, Fianna Fail)
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Senator Ryan could be classified as coming from the Fianna Fáil gene pool, although he likes to forget it.

Brendan Ryan (Labour)
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I do not like to forget it. It is many of the Minister's colleagues on the Government side who do.

An Leas-Chathaoirleach:

We are getting away from the amendment. Senator Ryan on amendment No. 1.

Charlie McCreevy (Kildare North, Fianna Fail)
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It is a very strong gene pool.

Brendan Ryan (Labour)
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The fundamental issue that arises is the determination to ensure that some people, other than the Minister who has no inhibitions about it, would be able to express themselves freely without the fear that someone might find out what they are thinking.

In the next six weeks I will correct exams and projects in which I will have to make decisions and serious judgments which will affect people's futures. Some of them will arguably be subjective because there will be no objective criteria. All will determine whether a young person receives a pass or honours degree or, God forbid, fails the exam. Once the exam results are issued, every piece of documentation I have used to make a judgment about a young person will be available to him or her under the Freedom of Information Act. That is quite right.

How could it be that something that I find difficult but right is so wrong and difficult for Government that it wants to take that same right away when it applies to it? Our amendment is about stating the purpose of the Bill, namely, protecting Government from the type of scrutiny that is good for both Government and society and is no problem for capable Ministers, such as the Minister for Finance who is more than capable of making up his own mind about many matters, although he is usually wrong, and does not need bureaucratic or legal protections to conceal his capacity for making up his mind and differing from others. Therefore, our amendment essentially says that this is not a freedom of information Bill but a suppression of information Bill and should be so called politically speaking.

Terry Leyden (Fianna Fail)
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I welcome the Minister on his return to the House and remind Senators that he spoke on Second Stage on 4 March and gave an excellent account of himself. I compliment the Minister of State, Deputy Michael Ahern, for his work on the Bill and the staff who have been excellent in giving tremendous advice. Tabling an amendment to delete the name of the Bill is nonsensical.

Before Senator Ryan departs, I would like to confirm that he lived for some time in a castle in my area. He did not continue with the profession with which he was involved at that time, but I am sure he would have made a great success of it. He has had two or three changes in his life.

Charlie McCreevy (Kildare North, Fianna Fail)
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I cannot accept the amendment, or any of the similarly worded amendments which propose the deletion of all sections of the Bill other than sections 7, 12, 13, 17, 23 and 24. I outlined the purpose of the Bill on Second Stage and the Minister of State, Deputy Michael Ahern, spoke about it on Committee Stage. I will not accept the amendments put down by the Labour Party, as they would, in effect, negative the purpose of the Bill.

I wish to comment on a point made by Senator Ryan. When Senator McDowell was a Member of the Lower House, he gave me some credit. He said he enjoyed reading the deliberations of the tax strategy group, for example, because he knew that I would not adopt any of the group's proposals in the budget or the Finance Bill. Senators are aware that I do not have any difficulties in accepting or rejecting advice. The purpose of the Bill, which has been well outlined, would be negated by the Labour Party's first group of amendments, with which I do not agree.

Derek McDowell (Labour)
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I do not intend to dwell on this matter. The Minister has pointed out that the Labour Party has put down a number of amendments which seek to negative various sections of the Bill. My party does not intend to pursue the earlier amendments at any length, as they were flogged to death on Committee Stage. My party intends to move rapidly through the earlier amendments, with the exception of those which may lead the Minister to make a statement of substance.

An Leas-Chathaoirleach:

As amendments Nos. 2 and 6 are related, they may be discussed together, by agreement of the House.

Joe O'Toole (Independent)
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I move amendment No. 2:

In page 5, between lines 6 and 7, to insert the following:

"1.–The long title of the Principal Act is amended by substituting "PERSONS". for "MEMBERS OF THE PUBLIC".

I welcome the Minister for Finance. I made remarks similar to those of Senator McDowell, in relation to the Minister's trip to Cheltenham, on a previous occasion. I have many differences with the Minister, but I can confirm that I have had many meetings with him before 8 a.m. and after midnight. His trip to Cheltenham, which he was perfectly entitled to make, should not be seen as a reflection on his work rate. The time off he took was no more than time in lieu of his efforts and was never an issue for me. I defend the Minister in that regard. Last week's debate was diminished by the references to Cheltenham. As I said to the Minister privately, however, he needed to be in this House for Committee Stage of the Bill, just as one ensures that one's important business is conducted when one is available. My belief that the Minister should have been here last week to deal with the Bill is separate to the Cheltenham issue.

Jim Higgins (Fine Gael)
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I second the amendment. I endorse the comments of the two previous speakers regarding the amendments under discussion. We broke last week after a long Committee Stage debate under the clear impression that sanity was prevailing at last and that the amendments we put after consultation with interested parties would be taken on board by the Government. We provided the Government with the breathing space to consider the proposals.

We have attended the Joint Committee on Finance and the Public Service where an excellent consultation process has taken place. Representations were made by the National Union of Journalists and the Information Commissioner last week and yesterday by the Irish Council for Civil Liberties, the Wheel – a network group for the voluntary and community sector – and the One in Four group. None of these bodies can be regarded as frivolous or vexatious, rather they are serious organisations with legitimate complaints in terms of the thrust and content of this Bill. They worry about the way the amended legislation will affect the fundamental rights established in the 1997 Act.

The Government is intent on pushing the Bill through the House today without amendment. I have read in the newspapers that the Taoiseach said he was open to suggested amendments and the Minister for Finance has been quoted as saying he is amenable to sensible suggestions and amendments. However, this House is considering Report and Final Stages of this Bill without making any changes to it.

The Bill is circumscribed in terms of the 18 April deadline the Government insists must be met to protect the records which fall to be released after the five-year period set out in the 1997 Act. It would have been logical for the Government to use the seven days provided by this House to bring forward sensible amendments, rather than wait to introduce them on Committee Stage in the Dáil. As has been said by Senator O'Toole, these amendments have to be considered by this House later. We are involved in a legislative process which resembles a game of ping-pong, as the Bill goes from this House to the Dáil before coming back again. It would have made far more sense to streamline the process by bringing in amendments today.

As things stand, this debate is a farce and a charade which represents a re-run of Committee Stage. Substantial Government amendments should have been formulated in the time provided for further consideration of the legislation. We could have concentrated on those, rather than regurgitate the amendments we tabled on Committee Stage.

Derek McDowell (Labour)
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Speaking specifically to the amendments, as other Senators have pointed out, they were actually included in the commissioner's report and in his recommendations to the Department of Finance some months ago. A specific point arose on Committee Stage last week when the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Michael Ahern, conceded that there could be confusion during the course of the process of a request as to who had made the request or the ownership of any information that might come about as a result of the request. The possibility was raised that a newspaper such as the Irish Independent or The Sunday Tribune might make a particular request but because they are corporations, they do not appear to have any status in regard to the Act as it currently stands. In order to remove any confusion that might arise, the commissioner suggested that corporations be included in the definition of persons in the legislation. This is the normal practice in regard to legislation, specifically in regard to the Interpretation Act.

Terry Leyden (Fianna Fail)
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I am interested in the new alignment of the Opposition in a united coalition against the Bill. Senator O'Toole appears to want to consult everyone: the user's groups; the commissioner; and everyone else. However, the last entity he wants to consult is the Government. As far as I am concerned, it is the Government and the Minister who decided on the Bill that is before the House.

Joe O'Toole (Independent)
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The Senator did not actually hear what I said, which was that the Government will decide at the end of the day.

Terry Leyden (Fianna Fail)
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Indeed.

An Leas-Chathaoirleach:

Senator Leyden, without interruption.

Terry Leyden (Fianna Fail)
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If the Senator accepts that, I advise him to withdraw all the amendments because he is wasting his time. That is my advice to him. The Minister has made the position clear. He, in conjunction with his officials – and I disagree with Senator McDowell—

Joe O'Toole (Independent)
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In fairness to the Minister, he did no such thing. He said he will listen to the views and make his decision then.

Terry Leyden (Fianna Fail)
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Of course he will listen. Senator McDowell referred to the Minister of State, Deputy Michael Ahern. He acquitted himself very well, as did his staff, and I wish to make that quite clear. Each Opposition amendment was considered and responded to in a detailed manner. It was clear that they were informed about the Bill and they defended it well.

The Minister is in the House now and he will take into consideration all the points that have been made. There is no reason he should not do so. In due course, and in consultation with his officials, he may decide to make some amendments. That is his right and that is in order.

Joe O'Toole (Independent)
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That is the way it works.

Terry Leyden (Fianna Fail)
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I accept that, but Senator O'Toole seems to want to accept everyone's view but that of the Minister and the Department of Finance.

Joe O'Toole (Independent)
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I did not say that he should accept anyone's view, I said that the final decision rests with the Government.

An Leas-Chathaoirleach:

Senator Leyden, without interruption.

Terry Leyden (Fianna Fail)
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I was delighted to get the opportunity last week to discuss this issue at the committee and to put to the commissioner the situation that exists in the House. While it was good to be able to deal with a senior official who could respond in the appropriate manner, I still fundamentally disagree with him making comments in regard to a Bill that is before the Oireachtas. His job was to comment on the Act and its workings and not on legislation that is being considered by the House. That is a fact. While it may not be possible to sack him, he is not above criticism. As far as I can see there is nothing in the Act that could threaten his position. He is acquitting himself well.

An Leas-Chathaoirleach:

I remind the Senator that we are discussing the Freedom of Information (Amendment) Bill. It is an amendment to the original FOI Act.

Terry Leyden (Fianna Fail)
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It seems to me that we are discussing amendments recommended by the commissioner.

Joe O'Toole (Independent)
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No.

An Leas-Chathaoirleach:

I remind Senator Leyden that we are discussing the amendments.

Terry Leyden (Fianna Fail)
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I disagree with the view put forward in this amendment. I hope we vote it down. I compliment the Minister on the Bill. In due course he will deliberate on the views expressed and the Government will make the final decision. We should also respect its right to have a view on the Bill.

Mary Henry (Independent)
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I regret that we got off to such a bad start with Report Stage. I fully expected to come in this morning and find that the Government had put down amendments to the Bill. The Minister was not in a position to hear the views of the high-level review group or the commissioner who addressed the Joint Committee on Finance and the Public Service, although I am sure he has read what they said. I assure him that they were extremely impressive.

It is unfortunate that we are not trying to make some progress with the Bill by accepting, for example, the amendment before us – tabled by me, Senator O'Toole and others – particularly in view of the fact that it only suggests that it would be better if we kept in line with the Interpretation Act 1937, regarding a definition, rather than proposing something novel. I regret that these amendments do not seem to find favour.

One good thing which has come out of the debate is that more people know about the Office of the Information Commissioner. One group of people who had problems with what they felt were repeated and sometimes vexatious requests had sought legal advice in the past, whereas they could have just referred these requests to the office of the commissioner who performs a very valuable service for all of us.

The question in regard to persons is only a matter of clarification. Perhaps I am being pessimistic in thinking the Minister will not accept the amendments.

Martin Mansergh (Fianna Fail)
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I wish to make a general comment on the debate so far. It would help the debate, once the preliminaries are over, if we concentrate on the merits or otherwise of each of the amendments rather than going around the houses on every particular issue. I intend to approach this debate in a rational and reasonable manner. These amendments appear to be quite reasonable technical amendments, but the Minister may have a more informed view of the matter.

I do not share the view of my colleague, Senator Leyden, in regard to the Information Commissioner. He has done a service by giving us his views, which is not to say that I find all the points he makes of equal cogency. We should respect independent officers of the State, who are very important to our democracy, and be slow to criticise them. Our interest is to get the best possible legislation and reasonable inputs from any source are to be welcomed.

Mary White (Fianna Fail)
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I am honoured and delighted to be a member of the Joint Committee on Finance and the Public Service. As a new Senator, I feel I am getting the opportunity to fully participate in good Government.

I agree with what Senator Mansergh said about the Office of the Information Commissioner. During his attendance at the committee last week, Mr. Murphy educated Members from all parties. Before we heard him, many people were not really clear about what the Bill contained. There are other groups that are making a major contribution as well. However, representatives of groups such as One in Four and the NUJ who appeared before the committee used Mr. Murphy's document and their contributions have been extrapolated from it.

Mr. Murphy attended an earlier committee meeting in his capacity as Ombudsman when he took on the Revenue Commissioners in regard to the taxation allowances of widows' pensions. There would not have been any redress for them but for his defence of this more vulnerable group in society. I am a member of the Joint Committee on Finance and the Public Service and while I am not defending his apparent challenge to the Bill, Mr. Murphy's contribution was relevant and helpful. We are privileged to have a man of his calibre holding these positions. He told us he had been a public servant for over 40 years. I believe in the public service and know that public servants have to be visionary and entrepreneurial, just as business people must be. I could see that Kevin Murphy had the courage to speak out.

Charlie McCreevy (Kildare North, Fianna Fail)
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I will not accept these amendments. The Interpretation Act 1937 provides that in the absence of contrary intention, "person" includes the body corporate. The advice of the Attorney General is that the long title of the Freedom of Information Act which refers to members of the public contains such a contrary intention. The Act provides a right of access to records for natural persons, namely, individuals. In practice, this has not given rise to any substantial difficulties. While bodies corporate are not natural persons, it is nevertheless open to any individual within a body corporate to make a FOI request for any information in an individual capacity.

Joe O'Toole (Independent)
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The example offered by the Minister was discussed at some length last week and I do not agree with it. The person whose name is on the application is the one to whom we are relating. I do, however, see the point the Minister raised in the earlier part of the argument. I can see that having a triple interpretation of the word "person" could cause confusion which was not my intention. I do not fully understand the legal implications beyond this. I was aware of the 1937 Act and of the view the amendment supported what was contained in it. What the Minister has said has created confusion about this interpretation. He has clearly stated this is the Attorney General's position against whom I will not pit myself on legal issues. I reluctantly accept there is a significant intellectual legal argument against accepting the amendment and that I will have to consider my position on it.

Derek McDowell (Labour)
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I move amendment No. 4:

In page 5, to delete lines 10 to 28.

There is a definition section in the Bill where the only part of concern to us is the definition of the words "factual information". We had a lengthy debate last week as to what was comprehended by the definition and specifically discussed the tax strategy group papers referred to by the Minister. In my experience of dealing with the Department of Finance, I have found it has benefited hugely from the implementation of the Act. Most of its officials are quite happy to have their advice revealed to the public and discussed in an open fashion.

The tax strategy group papers are as good an example as one can get. The Minister has given an exemplary lead to some of his colleagues in his willingness to admit that he disagrees with some of the advice given to him. He quite properly points to the division of responsibilities between him as the deciding individual, on behalf of the Government, and those who give him advice. This is healthy and has been good for the Department. It does not reflect badly on its officials or the Minister and is something we all have an interest in seeing pursued.

Last week I sought an assurance from the Minister of State, Deputy Michael Ahern, that tax strategy group papers would be released in future. He did not feel able to give this assurance. Will the Minister assure the House that the new definition of the words "factual information" will include the tax strategy papers?

Mary Henry (Independent)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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I will not accept this amendment as it seems to negate the purpose of the Bill. There is no reason the tax strategy group papers will not be released.

Derek McDowell (Labour)
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I take this as being the assurance for which I was looking. On the face of it, the papers could easily be covered by the amendments to section 19 and others that deal with the deliberative process. For example, some Departments insist the Estimates process never ends. They forever go to the Department of Finance and will not accept an issue has been finally dealt with, or the deliberative process is over, for a long time. I was anxious to ensure the tax strategy group papers would not be part of this, caught by virtue of the deliberations of Government, or the amendments made by later sections, particularly section 12.

Charlie McCreevy (Kildare North, Fianna Fail)
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As the Senator knows, even in the tax strategy group papers, anything that relates to an ongoing process is deleted before the documents are released. While I cannot remember what the latest tax strategy group papers included or excluded, I am sure they contained sections that were blanked out. The tax strategy group papers were never released in total if they referred to on-going deliberations. That continues to be the situation.

Derek McDowell (Labour)
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I am pleased with what the Minister has said and I do not intend to press the amendment. However, it would be possible to define the TSG papers as records of Government under the terms of the Act if someone were minded to do so.

Charlie McCreevy (Kildare North, Fianna Fail)
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If it were down to the Government, they would be records of Government but they are not at the moment.

Martin Mansergh (Fianna Fail)
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As a recent member of the tax strategy group, I welcome the Minister's announcement. They help inform public opinion and economic analysis.

Amendment, by leave, withdrawn.

Mary Henry (Independent)
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I move amendment No. 5:

In page 5 between lines 14 and 15, to insert the following:

"(d) in the definition of 'request to which section 29 applies,' by substituting '28(5)(a)' for '28(5)'.".

I must refer to my new best friend, the Information Commissioner, for this recommendation.

Derek McDowell (Labour)
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I second the amendment. As Senator Henry pointed out, the Information Commissioner made this recommendation. It is specifically intended to take any reference to 28(5)(b) out of the Act in so far as there is no reference to public interest therein. It is intended primarily as a cleaning up exercise.

Charlie McCreevy (Kildare North, Fianna Fail)
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This amendment, which has been suggested by the Information Commissioner, is not being accepted. It would mean, in effect, that a public body would not be obliged to consult with a person prior to making a final decision to release the personal information of that person to some other person, where a public body has decided it would benefit the individual to release the information concerned. It is not clear why a public body should not be obliged to consult in such circumstances. We are, after all, talking about the release of someone's personal information, albeit in circumstances where the public body has decided the release would benefit the individual concerned. The principal Act clearly envisaged that it is appropriate to consult in such circumstances and I have not seen any convincing argument from the Information Commissioner or otherwise why this should not continue to be the case.

Amendment, by leave, withdrawn.

Amendment No. 6 not moved.

Derek McDowell (Labour)
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I move amendment No. 7:

In page 5, between lines 28 and 29, to insert the following:

3. – Section 3 of the Principal Act is amended in subsection (1) by the addition after paragraph (a) of the following paragraph:

(aa) by regulations amend the Third Schedule so as to insert therein reference to any additional provision of enactment as appears to the Minister to be appropriate having regard to the spirit and purpose of this Act,"

Mary Henry (Independent)
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I second the amendment.

Derek McDowell (Labour)
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This amendment, also proposed by the Information Commissioner, relates to section 32 of the original Act and allows the Minister to make regulations which would be added to the Third Schedule to the Act, which sets out those enactments of the Oireachtas which are automatically overridden by the provisions of the Freedom of Information Act 1997. This would allow the Minister, by regulation, to add further Acts of the Oireachtas which are automatically overridden and therefore extend the benefits of the original Act.

Charlie McCreevy (Kildare North, Fianna Fail)
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I will not accept this amendment which would empower the Minister for Finance to allow for provisions in other enactments that authorise or require the non-disclosure of records in the Third Schedule to the Freedom of Information Act. The effect of including the provision in the Third Schedule is that the FOI Act overrides provisions where requests are made under that Act.

Derek McDowell (Labour)
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Anybody listening to these deliberations would be at pains to understand what we are talking about.

When the Act was being drawn up in 1997, there were concerns about various detailed provisions in other Acts which limit the availability of information. The purpose in drawing up a Third Schedule to the Act at that stage was to draw up a list of enactments which effectively were automatically overridden by the Act.

The Minister is reluctant to reveal the legal advice which underpins his rejection of the amendment. That puts me in some considerable difficulty but there is no apparent reason why we should not look to update and extend that list of enactments as it seems appropriate to Ministers.

The Minister rightly points out that the power to review is vested in the Oireachtas, which is fair enough. However, he was also quick to point out last week that the ultimate power of decision-making was his, so it seems there is a contradiction. Therefore, it seems appropriate that the Minister should exercise his discretion and make his judgment to broaden the basis of the original Act by adding to the enactments in the Third Schedule.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach:

Amendment No. 9 is an alternative to amendment No. 8 and both may be discussed together by agreement. Is that agreed? Agreed.

Derek McDowell (Labour)
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I move amendment No. 8:

In page 5, to delete lines 29 and 30.

Mary Henry (Independent)
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I second the amendment.

Derek McDowell (Labour)
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This seeks to delete section 3 of the Bill, which relates to the head of a particular Department delegating to an official lower down in the hierarchy of the Civil Service the power to make a decision. My understanding is that, in most Departments, this is delegated to principal officers in charge of particular sections.

Terry Leyden (Fianna Fail)
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We discussed this matter in great detail on Committee Stage. Iris Oifigiúil seems to be a redundant publication as far as I can see. No one in the House has a copy of it or knows where to obtain it. It used to be circulated some years ago but it is now the last place someone who wanted to find an information officer would look. The simplest way to do so is through the telephone directories. I looked up some of the county councils and health boards and some of them listed their FOI officer, which is a good way of getting information across. If one wants to find out, one rings the organisation in question and asks who the information officer is.

When I was chairman of the Western Health Board, it took the FOI legislation seriously. A senior programme manager was assigned to the area of freedom of information who reported each year to the local authority on the progress and developments of the activities of the Act as it applied to the health board. The same applies to most local authorities. The Bill is adequate in this regard. Therefore, the amendment should not be pressed. Nearly every organisation has a website and lists its FOI officer. The information is therefore easiest to obtain from the organisations themselves. The information needs to be listed in an active medium such as websites or telephone directories rather than in Iris Oifigiúil, which people do not know where to find.

Jim Higgins (Fine Gael)
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I fully agree on Iris Oifigiúil as a document not in widespread circulation. I have never set eyes on it. However, it is looked upon as a kind of bible – beautiful in terms of knowledge of what is happening, what decisions have been taken and who is responsible for what. Are we to abandon it? I take the point that nowadays we have websites and telephones and that one can look at a local authority handbook or find out at health board level who is responsible for something. However, from the point of view of the original intention of the 1997 Act, what is wrong with publication in Iris Oifigiúil? People may not have ready access to it but what would be lost by doing this? While I mentioned that as a Member of this House I have never seen a copy, I cannot see any reason for not doing this.

Mary Henry (Independent)
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I hear all the explanations about looking up the freedom of information officer in the telephone book but that is not necessarily the person who correlated the information. In a big organisation some of this work will have to be farmed out to others. I cannot understand the reason the Minister cannot accept this for the sake of transparency and accountability. The head of any public body found to have ignored the subsection should be accountable to the commissioner. That is the reason Senator O'Toole and I brought forward this amendment.

Martin Mansergh (Fianna Fail)
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The amendment adds more bureaucracy to the system. As I said last week, freedom of information requests are dealt with by the sections to which they relate. I cannot see the value of what is being proposed. I am saying this as somebody who, when I was a civil servant, was on the circulation list of Iris Oifigiúil, which normally consisted of one person – me.

Charlie McCreevy (Kildare North, Fianna Fail)
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I will not accept an amendment to retain the requirement for notice of a delegation under section 4(5) of the principal Act to be published in Iris Oifigiúil. Details of the delegations made by the heads of bodies that come under the Freedom of Information Act are published in the annual report of the Minister as detailed under section 15 of the principal Act. Also, as set out under section 15 of the Act, each public body is required to publish details of the arrangements made by it enabling a person to obtain access to records held by it and exercise his or her other rights under the Act. Such details include the names and designations of persons or staff responsible for carrying out such arrangements. The Department of Finance also has on its website a regularly updated list of FOI officers in all public bodies, plus contact details, which is made available in hard copy to anyone who requests it. Individual public bodies may also publish contact details on the Internet or make such details available on request.

Derek McDowell (Labour)
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I move amendment No. 10:

In page 5, to delete lines 31 to 33 and in page 6, to delete lines 1 to 10.

This, the first substantive amendment we have reached, proposes to delete section 4 of the Bill which redefines what constitutes personal information. The Minister will doubtless be aware that this is causing considerable concern. I am particularly concerned about the comments of the leader of the One in Four group who said that much of the information on files held by health boards relating to people who had suffered abuse in the past would not be available under the new Bill.

It is also very unclear from where the demand for this change has come. Reading the records of the committee's meeting last week, I noticed that it did not really deliberate on this section, nor did it see it as something with which it wanted to interfere. It is also clear, recalling the comments of the Taoiseach in the Lower House the week before last, that he did not know that the Bill contained a substantial redefinition of what amounted to personal information. There is no doubt that if we accept the redefinition of personal information, much information previously available to individuals and that concerns them personally will simply not be available in the future. The files must now contain personal information rather than relate to a person. There is no doubt that a huge amount of information will now be precluded from release in a way that was not the case heretofore. This amendment is a substantive one and I ask the Minister to give it some consideration.

Martin Mansergh (Fianna Fail)
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I have had great difficulty, including with the benefit of the commissioner's report, in following this argument about the difference between the words "contain" and "relate to". I am not convinced there is an enormous difference between them or any difference at all. Both require some interpretation in individual instances. I find it difficult to agree that a substantial change is being proposed.

Mary Henry (Independent)
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I second Senator McDowell's amendment. This is an important matter. Like Senator McDowell, I read what the Taoiseach said about this Bill not affecting individuals. I am sure the Minister has heard from those who were victims of abuse within various institutions. As we spoke at great length about this on Committee Stage, I will not delay the House but there is a huge difference between files that contain information and those that relate to a person. As I said on Committee Stage, the Government is trying to make it more difficult for individuals to obtain information on themselves which may be extraordinarily important. One of the good things about the Freedom of Information Act was that people were able to obtain information that related to themselves. Others are also extremely anxious because they believe they will not be able to get hold of files that may contain mistakes in personal information. I support Senator McDowell's amendment.

Mary White (Fianna Fail)
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On a point of procedure, last week a meeting of the Seanad took place while the Freedom of Information (Amendment) Bill was being debated at the Joint Committee on Finance and the Public Service. It would have been more appropriate, from a procedural point of view, if the Seanad had not met and we had discussed FOI in the committee because I could not be in two places at once. It did not make sense.

I listened yesterday to Mr. Colm O'Gorman, the director of One In Four. He feels passionately about abuse, saying that 27% of Irish people have been sexually abused. I do not know if that figure is correct – it would mean 1 million people had been abused on the island.

It is important that we clarify the terminology used, particularly in light of Mr. Murphy's comment that it is clear that records which relate to personal information, as currently provided for, encompass a broader category than those which contain personal information. It is important to reassure One In Four that all people who have been abused have access to this information. If the word "contains" covers every application by a young person trying to delve into records, that is fine. However, a satisfactory answer to Mr. O'Gorman's questions was not put forward at yesterday's meeting.

The Government taking responsibility for the claims of abused children was one of its greatest achievements because the institutions operated under the State. I do not agree with the Opposition's questioning of that position. This is an emotional issue for people to discuss and we should reassure the group that the proposal before us will not affect them. If that is the case, we can leave it but I do not believe it is satisfactory. No one at yesterday's meeting could say if it would have this effect.

Jim Higgins (Fine Gael)
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I attended yesterday's meeting and I was impressed with the case put forward by One In Four. Presumably, as a very well organised group, it has legal advice and knows exactly what it is saying. This group has acquitted itself in a responsible manner and, as head of the group, Mr. O'Gorman has won admiration for the non-confrontational manner in which he has dealt with this issue. He made the following point yesterday:

Such an amendment will certainly result in people seeking to validate the truth of traumatic experiences as children being unable to get access to records and files currently available under the 1997 Act. It is an essential part of the healing process for people abused in childhood to be able to reclaim their stories, to name what was done to them. Often health and social care or educational flies will contain information essential to that process. Such files may not be specific to the person concerned but may refer to the institution, professional or authority involved or responsible for the abuse.

He proceeded to say:

Whilst the impact of the proposed amendment is perhaps most evident in relation to those of our citizens abused in industrial schools and institutions, it will, in our opinion, have similar effects on people abused in other settings. Let us take, for example, a case involving a woman sexually abused at the age of seven by a health care professional. In her 40s this woman began to feel a need to address what had happened to her. However, given her age at the time of the abuse and the nature of what happened, it was difficult for her to put words to her experiences. She found herself questioning her memories and indeed her sanity, she became depressed and suicidal. Finally, she heard that others had reported similar abuse perpetrated by the same alleged offender; she also discovered that health board files existed that might contain information relevant to her case. She made a complaint to the gardaí but following a DPP decision there is to be no prosecution in her case. She is now left feeling dismissed and disbelieved and is again depressed and suicidal.

Under the current legislation she might well be able to get access to health board files that will validate her memories and experiences. Then, with appropriate therapeutic support, she can move through this experience and work towards her recovery.

If the amendment is adopted this woman will not be allowed access to such files as they will not name her directly but they clearly may contain information relevant to her. We believe this woman has a right to such information and such cases powerfully demonstrate why a robust freedom of information process is essential.

The group has put forward this opinion on the basis of strong legal advice because it is a responsible organisation and has genuine and well-founded concerns in relation to the consequences of the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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The purpose of this provision is not to restrict information, but to achieve clarity. The meaning of the term "relate to" in section 6(5)(b) of the principal Act has already been the subject of an appeal under the Freedom of Information Act to the High Court in the case of E. H. v. the Information Commissioner. My officials have summarised a copy of the High Court judgment, but Senator McDowell is a lawyer who makes a good fist of tax matters and legal judgments in the House. If the Senator and his good legal friend who advises him can come to a clear position on what Mr. Justice O'Neill meant and if he can provide me with a clear synopsis of the judgment and of how it is to be interpreted, I will recommend the Department of Finance pays him a fee.

The relevant official from my Department has done a great job summing up what he thinks the judgment means and I hope Senator McDowell arrives at the same interpretation. The purpose of this section is to clarify the situation. In his submission to the committee, Mr. O'Gorman was not too clear either. In his statement he said he could not get the information under the existing process. This new section is designed to bring a degree of clarity as a result of the High Court decision.

According to my summary, in the view of the High Court the test to be applied to determine if a record relates to personal information is whether there is a sufficiently substantial link between the requester's personal information, as defined in the Act, and the record in question. My officials have decided that the determining factors identified by the court were the circumstances in which the record was created, the purposes behind the creation of the record – particularly if it was created with the affairs of the individual in question in mind, notwithstanding the fact that the record may not specifically mention or refer to that individual – and what was in the mind of the author at the time of creation of the record, particularly if the requester was in the mind of the author.

Senator Mansergh has paid attention to what was said – he may even have read the judgment – and he is not too clear about it either. I have worked closely with Senator Mansergh for a number of years, and there is no clearer mind in deciphering decisions of courts and experts. I have often preferred to obtain the opinion of Senator Mansergh than many of the legal experts to whom I have paid large fees. This is the best we can make of that particular judgment.

Derek McDowell (Labour)
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I thank the Minister for his detailed response. We are replacing a situation where discretion must be used with a situation which, I accept, has greater clarity. Whether or not it is the Minister's intention, however, the effect of this will be to restrict the availability of some records. Mr. O'Gorman simply pointed to the types of records which he felt could—

Charlie McCreevy (Kildare North, Fianna Fail)
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The Senator is not correct. At the moment, some requests are being refused because of the way the law is being interpreted. The new Bill does not limit the scope of information that will be made available.

Derek McDowell (Labour)
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The definition, as it currently stands, includes personal information and information relating to personal information. That has to be a broader category of information than records that simply contain personal information. It leaves an extra bit of discretion to decision makers.

Charlie McCreevy (Kildare North, Fianna Fail)
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Where does that end?

Derek McDowell (Labour)
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This is not unusual in the Bill. It is full of subjective tests. The Bill requires decision makers to make decisions all the time as to what is in the public interest, for example. That is not clearly defined, so there is discretion. Decision makers must exercise discretion all the time. The area of personal information is one in which decision makers should be encouraged to exercise their discretion fairly liberally and to err on the side of releasing information. The thrust of the whole 1997 Act, after all, is to encourage the release and sharing of information. Section 4 of the new Bill would restrict information.

Question put: "That the words proposed to be deleted stand."

Tá

Derek McDowell (Labour)
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I move amendment No. 12:

In page 6, to delete lines 20 to 47.

We had a lengthy discussion on this provision on Committee Stage. This is the "neither confirm nor deny" provision which is extended to several sections of the Bill. I move the amendment simply to allow the Minister an opportunity to give us the benefit of his speaking note. In conversation with his officials they explained to me very specific provisions which they intended to catch. It would be useful to have it outlined that that is the intention.

The problem is not what the officials told me but what the Bill does. For example, it allows for all measure of information that might be in the consideration of the person making the decision commercially sensitive to be withheld. There is a problem in so far as it appears to allow the decision maker a broad definition in neither confirming nor denying that there is a particular record. How far does the Minister see this extending?

Jim Higgins (Fine Gael)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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To which section does it directly refer?

Paschal Mooney (Fianna Fail)
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It refers to section 6. We are discussing amendment No. 12 which proposes to delete lines 20 to 47 on page6.

Derek McDowell (Labour)
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The section I propose to delete allows someone to decide neither to confirm nor deny that there is a particular record. That provision is already contained in the existing Act but this section would extend the areas where the refusal to confirm or deny that there is a record would apply, to the three new areas of commercially sensitive information, personal information and matters dealing with legal affairs.

Charlie McCreevy (Kildare North, Fianna Fail)
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The purpose of the section is to ensure that where there is a refusal to confirm or deny the existence or non-existence of a record, the provisions of section 19, 20 or 21 of the Bill are invoked. Public bodies are not obliged to disclose the existence or non-existence of such a record in a notification to a requester. The amendment is consequential on amendments proposed to sections 19, 20 and 21. The Senator proposes to delete section 6.

Derek McDowell (Labour)
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My concern – I appreciate the Minister's forbearance in hearing it – is that this allows decision makers a huge breadth of discretion in neither confirming nor denying that there is a particular record. While I know the section is intended to cover particular cases, I would like the Minister to outline what he considers those cases to be, rather than allow a section to stand without explanation as to what it is intended to do. As I have applied my mind to framing an amendment in a way which would restrict discretion, I know it is difficult. However, it is important to outline what the section is intended to do.

Jim Higgins (Fine Gael)
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The existing Act provides for four exclusions and it is now proposed to add a further three – personal records, commercially sensitive information and confidential information. The problem is one of definition. How does one define what comes within these additional categories? Why were they not included in the original legislation in 1997? What has happened in the meantime to bring about a sea change in Government thinking in order that these three areas are being added as further exclusions to the original four?

Charlie McCreevy (Kildare North, Fianna Fail)
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The ordinary running of the Act is what has happened in the meantime. It was agreed in 1997 that it would be reviewed after a number of years. Problems have arisen with various sections. The Senator has referred to the difficulty of deciding such matters. Senator McDowell, for example, asked who decided in the public interest. All of these matters are subjective to some extent.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment declared lost.

Derek McDowell (Labour)
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I move amendment No. 13:

Jim Higgins (Fine Gael)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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I will not be accepting this amendment. I am not convinced there are grounds for restricting the period of time, to 12, 24 or some other period, for which a public body can invoke the provision whereby failure to pay a fee properly charged under freedom of information can constitute grounds for the refusal of a request. This would serve unduly to restrict a public body in taking unreasonable behaviour into account. The payment of fees is a requirement under the Freedom of Information Act and it is only correct that a failure or previous failure to pay a fee should constitute grounds for the refusal of a request, regardless of when that failure occurred.

The amendment concerns section 10 of the principal Act which contains a "may refuse" rather than a "shall refuse" exemption. The head of a public body will continue to be able to exercise discretion before deciding to refuse a request because a previous fee owed to the body had not been paid by the requester.

Jim Higgins (Fine Gael)
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The question of the payment of fees arose yesterday during a presentation to the joint committee by Wheel which represents several voluntary organisations. The imposition of a flat fee would cause considerable difficulties for voluntary and philanthropic organisations on which it would impose a considerable cost. What would be the level of the fee? Would this be within the Minister's discretion? Does he have any thoughts on the matter which he would like to share with the House?

Mary White (Fianna Fail)
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I asked Wheel some questions yesterday about its funding. It is funded by the Smurfit Group, Esat and Mr. Chuck Feeney. It is extremely well funded. It has blue chip funding and must be flush with money. It employs seven people.

Jim Higgins (Fine Gael)
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The constituent organisations may not be.

Mary White (Fianna Fail)
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I realise that but I am clarifying the reason I asked the questions yesterday. I suggest that fees be waived for unemployed persons, pensioners, students doing research and those who have been abused. The NUJ in its submission to the Joint Committee on Finance and the Public Service objected to the charging of fees. I do not object to people who work in the media being obliged to pay fees because newspapers or other media companies can pay them. I have also considered the position of freelance journalists who can include fees paid in their record of expenses.

The provision of a waiver for the four groups mentioned is a serious issue. The NUJ made a strong case that it should not have to pay fees but I do not agree with its argument.

Martin Mansergh (Fianna Fail)
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I support what Senator White has said. When the State imposes fees, there is usually provision for them to be waived or reduced for those in various categories not in a position to afford them. I would also include students of journalism among those categories. I agree with the Senator. I see no reason whatsoever mainstream journalistic organisations should not pay such fees. They are normally well able to do so.

Charlie McCreevy (Kildare North, Fianna Fail)
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I do not accept the amendment. Regarding the general question of fees, they will be reasonable fees and will be regulated. I take on board what Senators have said about various categories. However, it is my experience in all areas of public life that when something is free, it is abused. Senator Higgins comes from a part of the country I know well and he will agree with me on this point. There are various categories of services available from the State that are absolutely free. If there was a minimal charge—

Jim Higgins (Fine Gael)
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Nominal.

Martin Mansergh (Fianna Fail)
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Hear, hear.

Charlie McCreevy (Kildare North, Fianna Fail)
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Even a nominal charge would lead to less abuse of services. I am strongly of that principle – Senator McDowell is not, as I know from the Dáil. Services that are free in the public service tend to be abused. That is my overriding raison d'être in all these areas. Anything that is free will be simply abused, not just in Ireland but throughout the world.

Martin Mansergh (Fianna Fail)
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Not full whack.

Derek McDowell (Labour)
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On the substantive issue I am pleased to hear the Minister confirm that charges will be minimal or nominal.

Charlie McCreevy (Kildare North, Fianna Fail)
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I did not say that.

Derek McDowell (Labour)
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It would be good news, even if it is only to be extended to the four categories as set out by Senator White. I am at a loss why he picks out County Mayo as being a part of the country where services are abused.

Derek McDowell (Labour)
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I move amendment No. 14:

In page 7, between lines 31 and 32 to insert the following

8.–Section 12 of the Principal Act is amended in subsection (2)(b)(ii) by the insertion after "concerned" of "which, in the opinion of the head, would be likely to result in significant impairment of the rights of the copyright holder".

This is a technical amendment that arises out of the Information Commissioner's report at page 76. Section 12 of the original FOI Act sets out the way in which copies can be provided to requesters, normally by photocopy. The commissioner points out that, technically, copyright could be infringed in many of theses cases. There is a lot of information technically covered by copyright. The commissioner suggested an amendment of the original Act to oblige the decision-maker to refuse only in circumstances where the copyright holder would be in some way financially endangered. I imagine that would be in a small number of cases. This is a technical amendment which I hope the Minister will accept.

Charlie McCreevy (Kildare North, Fianna Fail)
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I second the amendment.

Mr. McCreevy: I do not accept this amendment. I note it suggests a similar amendment with a view to limiting the ability of a public body to refuse access to records, in a particular form or manner, where doing so would involve an infringement of copyright. This amendment raises an important legal issue as to whether or not a public body can effectively infringe copyright in certain circumstances. It is not clear that any substantial difficulties have arisen in relation to this area.

What we are discussing here is the form in which access to the records is given, not whether access to the record should be given. The Government is reluctant to put public bodies in the position of having to decide whether an actual breach of copyright involves a financial loss to or might represent an impairment of the right to a third party. Such issues are not easy for public bodies to decide and there is an obvious need for caution here, given the potential for litigation.

Derek McDowell (Labour)
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The Information Commissioner, I assume, proposed this on the basis of some experience. I assume the experience is that copyright has been technically infringed by public bodies in circumstances where nobody objected. He is simply looking to provide cover to the public bodies in circumstances like that by requiring that copyright be infringed in such a way that causes loss. I would ask the Minister to look at this again on the other Stages in the Dáil.

Amendment, by leave, withdrawn.

Amendments Nos. 15 to 18, inclusive, not moved.

Derek McDowell (Labour)
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I move amendment No. 19:

In page 8, between lines 38 and 39 to insert the following:

12.–Section 17 of the Principal Act is amended in subsection (5) by the deletion of "under this Act".

This refers to the Information Commissioner's report and deals with section 17 of the original Act. It allows requesters to require the amendment of records in circumstances where records become available outside of the FOI Act. The commissioner points out in his report that some records become available because of requests made under section 7 of the Act. There is a provision that allows requesters to require the amendment of personal information held about them by public bodies. In circumstances where they might obtain information outside the specific provisions of this Act, there is no such provision available to them and they cannot require the amendment of those records. The commissioner suggests that we should amend the Act to allow for that to happen. This is the purpose of this amendment.

Jim Higgins (Fine Gael)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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I understand that this amendment is related to the Information Commissioner's comments on pages 76 and 77. Accepting this amendment would provide a right under FOI to have a record containing personal information amended where release of the record concerned is provided for outside the scope of the Act. The FOI Act does not apply to records that are already available through other means. This principle is enshrined in section 46(2) which provides that the Act does not apply to records that are already available through other channels. Such records can be made available on an administrative or statutory basis, completely separate from the FOI Act. This amendment has the potential to interfere with and complicate the mechanisms that exist for the supply and, where relevant, the amendment of personal information outside the terms of the FOI Act.

The Land Registry has raised concerns over this proposal. It holds 3 million public records, particularly folios and maps, to which section 46(2) applies. It operates under two pieces of legislation – the Registration of Title Act 1964 and Land Registration Rules 1972, both of which provide a mechanism for the correction of errors and consequent amendment of the register on production of the necessary proofs.

Derek McDowell (Labour)
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I accept the thrust of the Minister's argument. It leaves the anomalous position whereby an individual who comes across personal information acquired under the terms of this Act would be enabled to require an amendment to that information, but if it is acquired outside the terms of the FOI Act, he or she could not. I do accept that if it is extended in an uncontrolled way, it may end up causing more problems.

Amendment, by leave, withdrawn.

Derek McDowell (Labour)
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I move amendment No. 20.

In page 8, to delete lines 39 to 43 in page 9, to delete lines 1 to 46 and in page 10, to delete lines 1 to 46.

This is a substantial amendment because it deals with two of the most controversial sections of the Bill. Section 12 deals with section 19 of the original FOI Act.

Sitting suspended at 1.30 p.m. and resumed at 2p.m.

Derek McDowell (Labour)
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We had just started our discussion of amendment No. 20 which, in effect, seeks to delete section 12, one of the two most important sections of the Bill and which provided the pretext for the review which the Government carried out in the first instance. Like others on this side of the House, I am not particularly exercised about when Cabinet papers should be released as I accept the principle that the Government should have space for a full and frank debate which as far as possible should be unconstrained by the risk that something said or written might be revealed immediately or during the decision making process. What we do not accept, however, is the extension of the provision into a range of other areas.

This section, for example, provides for a mandatory refusal to disclose records of Government within the ten year period. Section 19 of the original Act allowed the Secretary General or the person making the decision some discretion as to whether a memo to Government or Government papers should be released. As I understand it, this discretion was little used in that memos to Government were rarely, if ever, released but, at least, the principle was provided for that if it was considered to be in the public interest, such information could be released. By making it mandatory the Government is seeking to close off any possibility that information of that kind will be made available during the decision making process.

Kathleen O'Meara (Labour)
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I second the amendment which I agree with and support my colleague's comments. It is one of many which get to the heart not only of the legislation but also what appears to be the ambition of the Administration to change the operation of the Freedom of Information Act 1997 and narrow and cut back severely on the level of information available publicly, specifically on Government decisions. We know that this was an important issue in the debates on the 1997 legislation and one of the core issues of the legislation when being drafted to establish strongly the principle of open government. The 1997 legislation worked hard to create the necessary balance between the need for Government to have a level of confidentiality and secrecy around its decision making process and the need to avoid clouding the operation of government in a blanket of secrecy, which would be the effect of the amending legislation. Our amendment is designed to ensure the principle of openness in the original legislation is maintained to the best possible degree. The balance contained in the principal Act is the right one.

I asked the Minister on Second and Committee Stages to point to one example where the provisions of the 1997 legislation had caused a problem, not just political embarrassment. Where has the framework of the Act governing the openness surrounding Cabinet decisions or information to Cabinet that informs its decisions generated a problem? If the Bill is designed to close off the possibility of political embarrassment, we will know the ambition of the Government. I would like to hear the motivation for the provisions in the amending legislation in this respect.

I listened to the Minister's replies to earlier amendments. In the light of the comments of the Joint Committee on Finance and the Public Service following its deliberations on the proposals and the report of the Information Commissioner, will the Minister inform the House if he intends to take on board the committee's deliberations? It is important to know if the Government intends to table amendments in the Dáil. The Minister's negative responses so far to Report Stage amendments in this House indicate that his thinking has not changed and that he is not prepared to change his mind on the Bill, as published. What is his thinking? Will he bring amendments forward in the Dáil?

Martin Mansergh (Fianna Fail)
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In defence of the Minister, he indicated in response to points Senator White and I made that he was willing to consider, perhaps by regulation rather than by amendment, reduced charges for certain categories. He has taken account of the debate in this regard.

I agree that this section is at the heart of the Bill. It involves reconciling the freedom of the deliberative process in government with freedom of information. There has been a huge advance compared with five years ago. Whereas then this information was only available after 30 years, even under the amending legislation it will be available after ten. That keeps us on the liberal side of information regimes elsewhere, especially that which obtains across the water.

Mary White (Fianna Fail)
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Yes, that is right.

Martin Mansergh (Fianna Fail)
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People on all sides of the House are unhappy with the definition. I am not saying that I support the amendment, but I feel that the definition of officials should be considered by the Minister.

It seems that the Sunday newspapers will no longer include details of correspondence between the Minister for Finance and other Ministers. Such correspondence has reassured me in all cases, as it has shown that the Minister, Deputy McCreevy, is doing his job, which is to challenge spending programmes and plans. Those of us who have been involved in Government know that Departments sometimes ask for astronomical increases in funding.

I will abuse this opportunity by mentioning one such issue. Some of the plans for Dublin's transport infrastructure seem to be absolutely astronomical. Why should we spend billions of euro on a new tunnel to connect Heuston Station and Connolly Station, given that a tunnel between the stations already exists? We should examine how projects can be pursued economically, rather than choosing the most deluxe and imaginative project which costs the most astronomical sum of money. This matter has been discussed by the infrastructure sub-committee on many occasions.

Jim Higgins (Fine Gael)
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I agree with the comments of Senators McDowell and O'Meara. Although other sections will have quite considerable consequences, section 12 is the heart of the legislation because it contains its central goals. It is obvious that this section is a response to the Government's panic, which results from the fact that 18 April – which is D-day in terms of the release of documentation that the Government is anxious to protect – is approaching.

Mary White (Fianna Fail)
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The Government's central function is to make decisions for the good of citizens. Ministers will not express their opinions in a frank manner if they fear that Cabinet memorandums will be placed in the public arena too soon. I would not like my honest opinion, which might be based on vision and which might emerge from a brainstorming session, to be used as a scare story by the media. The Cabinet has to be efficient and smart if it is to perform its functions in an practical manner. If there is a requirement to disclose what passes between Ministers, they will conduct their business exclusively at Cabinet meetings which enjoy full protection. Such meetings would then become unwieldy. I accept that the protections extended to inter-ministerial communications regarding Cabinet matters should go further and be extended to cover other matters.

With respect, the remarks of Senator Higgins regarding public distrust of this process are exaggerated. I realise that he takes this subject very seriously and my comments are not meant to be personally critical, but this has been blown out of all proportion. The public realises that private discussions between Ministers before they get to Cabinet cannot be put into the arena. Any common sense person realises that we cannot disclose everything.

At the Joint Committee on Finance and the Public Service people worried about what constituted an "adviser" and asked if those advisers who are not civil servants would be covered by the legislation. That is the provocative matter, which is why clarification as to whom the legislation refers is required. I have complete faith in public sector officials and if they feel that confidentiality should be extended to ten years, we should concur. Clarification is required with regard to who is entitled to what information.

Charlie McCreevy (Kildare North, Fianna Fail)
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Section 12 of the Bill, which this amendment seeks to delete, is the most important element of the Government's proposals. I cannot, therefore, accept the amendment. For the benefit of the House, I will restate the Government's position as I set it out on Second Stage.

Martin Mansergh (Fianna Fail)
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Is it possible to state that a little more explicitly in the legislation?

Charlie McCreevy (Kildare North, Fianna Fail)
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My officials and I do not draft Bills – that is done by other experts – but the intention is as I have outlined it. I agree that the way the section is set out may be confusing, but Members should be careful in their reading of the indented subsections. Senator Mansergh and I discussed many years ago the simplification of the drafting of Bills, which is something Senator McDowell also proposed. Senator McDowell is probably aware that this process was attempted in the United Kingdom, but fell on its face. I engaged in deliberations to establish a pilot project, but the UK experience was off-putting. Efforts in Australia have been somewhat more successful, but they have not succeeded here.

The section in question goes to the kernel of the Bill and I am not in a position to accept the amendment. Senator O'Meara asked if amendments would be accepted, to which I respond by saying that there will be no substantial changes to the Bill. That is not to say there will be no tweaking in the context of contributions by Members on Committee and Report Stages. If people put forward reasonable suggestions, I am willing to consider them, but the substance of the Bill will not be changed.

Derek McDowell (Labour)
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We now understand clearly what most of us suspected. The Minister has no intention of responding to the considerable public debate on this issue.

Charlie McCreevy (Kildare North, Fianna Fail)
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There will be some tweaking.

Derek McDowell (Labour)
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But nothing of substance.

Charlie McCreevy (Kildare North, Fianna Fail)
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It depends on what one thinks is substance.

Derek McDowell (Labour)
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The Minister is the one who made the distinction between substance and tweaking.

Mary White (Fianna Fail)
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It is explanation.

Charlie McCreevy (Kildare North, Fianna Fail)
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What I think is tweaking, the Senator might consider substance or vice versa.

Mary White (Fianna Fail)
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It is important to note that the Minister will attend the Joint Committee on Finance and the Public Service to explain—

Rory Kiely (Fianna Fail)
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Members may speak only once.

Derek McDowell (Labour)
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The Minister's response discloses his perspective which, to be fair, he has never tried to keep secret. He said at the outset that the Government is entitled to order its business just like anybody else. In his Cheltenham comments of last week, he pointed out that the Opposition had lost the election and that it was up to the Government to decide what to do. I do not accept that. I accept that the Government makes the ultimate call.

Charlie McCreevy (Kildare North, Fianna Fail)
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The Senator does not accept the loss of the election.

Derek McDowell (Labour)
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I accept that much, but I do not accept that the Government can make its decisions in an untrammelled way. The Minister is not entitled to say that the Government has no duty to explain or to say that he need not justify the changes he is making. After all, the Government acts on behalf of and in the name of the people and it has a responsibility to take that into account when ordering its business and making its decisions. The mechanisms whereby its decisions are made should be based on consensus rather than on an assertion by the Minister that the Government has won the election and will speak to us in five years.

The Minister referred to the report of the high level group and the supposed raison d'être of the Bill, namely the extension of the five-year term to ten years. I have already said, as have other Opposition Senators, that while we do not agree with that we are not hugely exercised by it. He does not acknowledge that the Bill goes a good deal further – even in this section – because it redefines in a very broad way the records disclosure of which can be prevented and the people whose deliberations are also prevented from release by redefining the whole nature of Government. He has gone well beyond what was recommended by the high level group and well beyond what he gives as being the raison d'être for the Bill. That is the reason I am pressing this amendment.

Question put: "That the words proposed to be deleted stand."

Tá

Rory Kiely (Fianna Fail)
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As amendment No. 20 negatives amendments Nos. 21 to 24, inclusive, those amendments cannot be moved.

Amendments Nos. 21 to 24, inclusive, not moved.

Brendan Ryan (Labour)
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May I move that the House report progress? This is my entitlement under Standing Orders.

Rory Kiely (Fianna Fail)
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I cannot accept that proposal.

Brendan Ryan (Labour)
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I am entitled to move that the House report progress unless the Chair's view is that a minority will be seriously inconvenienced.

Rory Kiely (Fianna Fail)
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I am not prepared to accept that proposal.

Brendan Ryan (Labour)
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Will the Chair explain what minority will be discriminated against?

Rory Kiely (Fianna Fail)
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The Senator knows I do not have to explain my ruling.

Brendan Ryan (Labour)
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The charade continues.

Derek McDowell (Labour)
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I move amendment No. 25:

In page 11, line 13, to delete "a Department of State" and substitute "the Department of State concerned".

This amendment refers to section 13 which deals with the deliberative process. There is a process of certification by the Secretary General set out in this section, whereby the Secretary General can say that a deliberative process is ongoing. If he or she does this, there is no appeal mechanism and it is the end of the argument. This amendment would mean that the Secretary General of the Department concerned would have to issue the certificate relating to information contained within the Department and a Secretary General from another Department would not be entitled to make a certificate of this kind.

Kathleen O'Meara (Labour)
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I second the amendment. Amendment No. 25 relates to section 20 of the principal Act. As Senator McDowell said, it deals with a specific point that has been made by the Information Commissioner and was referred to in the deliberations of the Joint Committee on Finance and the Public Service.

I thank the Minister for his clear response to my earlier question and for having injected an even greater sense of realism in this debate. We are wasting our time and the points we are making are being made to the air. The Minister has said he will not accept any substantive amendments to the Bill. I thank him for the honesty and openness of his approach. Having clarified this, we now know to be untrue the suggestion that the Government was reconsidering its view on this legislation in light of the response of the public and the Opposition. There is clearly no intention of rolling back this amending Bill.

The Information Commissioner has pointed out that amending section 20 of the principal Act will lead to circumstances where a Secretary General from one Department will be able to bind the decision of a Secretary General in another Department. This creates an extraordinary situation. This amendment seeks to have a situation where the Secretary General's decisions should apply only to his or her Department and cannot bind the hands of another. Despite his earlier remarks, I ask the Minister to view this amendment as reasonable and sensible, and one which does not undermine his stated intention in relation to the principle of the legislation, but rather clarifies a particular point within it.

Jim Higgins (Fine Gael)
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I second the amendment. The beautifully constructed phrase and neat contrivance "deliberative process" is the same as asking how long is a piece of string. Deliberative process is an ingenious creation which acts a blocking device when civil servants decide they do not want to release the information on the basis of a deliberative process which can continue indefinitely.

I agree with Senator O'Meara's point about the ludicrous power of one Secretary General to tie the hands of another. In 2000, I tabled a question to the then Minister for Public Enterprise on a tender which was submitted by ESB International for the acquisition of several power plants near Gdansk in Poland. I sought information under FOI because I felt the Taoiseach had been less than forthcoming and truthful in relation to utterances he was making inside the Dáil and outside it and there had been a great deal of controversy about the matter. The tender had been well prepared and it is well-known that it was the best presented tender the Polish authorities received and had the best prospect of getting the nod. The Irish ambassador to Poland lobbied hard on its behalf and at the last minute, on the instruction of the Minister's Department, the plug was pulled on it because it was felt that the ESB was over-stretching itself.

I sought and received the file from the Department of Public Enterprise which was extensive and enlightening. By virtue of the fact that the Irish ambassador to Poland was involved in the lobbying process, I sought the file from the Department of Foreign Affairs but was refused on the basis that it would damage international relations. This was despite the fact that I already had an extensive file from the Department of Public Enterprise. If this legislation is passed, as sure as night follows day, the Secretary General of the Department of Foreign Affairs could tie the hands of the Secretary General of the Department of Public Enterprise and nothing would be released as a consequence.

Martin Mansergh (Fianna Fail)
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I am sorry that the Labour Party has suddenly become so defeatist about these deliberations. It is important to go through these sections on Report Stage, especially as some of the amendments were not tabled on Committee Stage because of the Information Commissioner's report. The deliberations have helped clarify sections of the Bill, put real fears at rest and will inform any final tweaking of the legislation.

I reject the argument made by Senator Higgins. Any clause in any legislation can be abused and – beyond a certain point – one cannot legislate for that. However, senior officials such as a Secretaries General wish to maintain their integrity and reputation, present and future, and will not deliberately abuse their powers to conceal something from the public which they should not. I do not accept Senator Higgins's premise.

Charlie McCreevy (Kildare North, Fianna Fail)
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The rate of exchange of information between Departments of the State and the deliberative process of central Government can result in records relating to that process being held by a number of Departments. Some such Departments might have had only an indirect involvement or relationship to the process concerned. It is possible, therefore, for an FOI request to be made to the Department of State for records it holds but which relate to the deliberative process of another Department. The arrangement whereby a Secretary General can certify records that directly relate to the deliberative process of a Department of State rather than the Department of State concerned affects this possibility. I expect the certification by a Secretary General of a record relating to the deliberative process of another Department would only take place in exceptional cases and following proper consultation.

I draw attention in this regard to comments made by the high level group which noted the absence of requirements to consult or inform another Department, in a case of a proposal to release information which relates to the activity of that Department. In order to address this, the group recommended the initiation of a system of formal consultation between Departments on material to be released. It is in the context of full consideration and consultation between the relevant Secretaries General that we envisage certification by a Secretary General of records relating to a deliberative process in another Department may have been prepared.

Senator Higgins referred to the case involving ESB International. I am sure the Senator followed up on that project and where it is now. Did he consider whether the Department of Finance and I were correct and that he and others were wrong about the matter?

Jim Higgins (Fine Gael)
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I merely sought the information.

Charlie McCreevy (Kildare North, Fianna Fail)
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Perhaps it was lucky that I took such a hard line for the benefit of that semi-State organisation.

Jim Higgins (Fine Gael)
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Did the Minister tell that to the then Minister for Public Enterprise, Senator O'Rourke?

Charlie McCreevy (Kildare North, Fianna Fail)
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We are not always wrong in the Department of Finance. Senator Mansergh pointed out that the idea that Secretaries General try to cosy up to Ministers is daft. Anyone who knows any Secretaries General will know that politicians will come and go but the Civil Service goes on forever. If one has been a Minister for as long as I have, one will appreciate this. Senator Mansergh has also been a civil servant and an adviser to the Government in a political capacity and he knows that well too.

In 1992, the Fianna Fáil-Progressive Democrats Government had fallen out. We had a general election and it looked like we were going to be out of power. Seán Duignan reflected in his book that there was a little drawing back, until it became clear Fianna Fáil was going back into Government with Senator McDowell's party. I have noted this scenario in dealing with civil servants.

Derek McDowell (Labour)
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I will not comment on the Minister's reflections. He and Senator Mansergh make the case well for those of us proposing the amendment by saying that, while the Bill is drafted in a way that allows a Secretary General to do a particular thing, they would never do it. However, that begs the question of why one would draft the legislation in such a way that would allow a Secretary General to close down information from another Department, if, as the Minister says, he does not expect this to happen.

Amendment put and declared lost.

Kathleen O'Meara (Labour)
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I move amendment No. 26:

In page 11, line 17, after "State" to insert "and in the opinion of the Secretary General the public interest would, on balance, be better served by refusing to grant than by granting the request".

This amendment is similar to amendment No. 25 in that it relates to the same section dealing with the deliberative process of public bodies and Government. I suggest that the amendment is perfectly reasonable. We are attempting to have inserted an additional number of words that, in respect of the deliberative process, would give the Secretary General of a Department an element of discretion in refusing requests for information or exempting entire swathes of information from being available under FOI. The way the section is drafted has the effect of creating a blanket refusal around large amounts of information currently available to the public under FOI. The amendment has the effect of reversing this to some degree. Under it, a Secretary General will be given some discretion in refusing to grant a request for reasons of public interest.

Derek McDowell (Labour)
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I second the amendment.

The existing provision effectively says that the Secretaries General must justify a decision to refuse. The presumption in the section is in favour of the release of information, so a Secretary General must show that releasing the information would damage the public interest. The section, as amended by the Bill, would effectively reverse that onus, so that the Secretary General will have to state that the public interest would be served by releasing the information. It makes it much easier for a Secretary General to satisfy himself or herself on a public interest test and close down the process by issuing a certificate. In this amendment, we are seeking to qualify the issue of the certificate by saying that the Secretary General must be satisfied that, on balance, the public interest would be better served by refusing to grant the request. We are trying to reverse the onus once more from its position in the amending Bill.

Brian Hayes (Fine Gael)
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I am against this amendment for the same reason I am against the change as a whole. As I said earlier, I approve of parts of the Bill that seek to secure Cabinet deliberations and papers. What I find difficult is that the fence is so wide. Matters would be much easier if it were narrower. If the exceptions were more clearly drawn and, as Senator O'Meara said, the background papers that help people to come to a decision were available, people would be able to consider the quality of a decision and the real reasons behind it.

I also find it difficult to accept the proposition that every Secretary General deserves to be beatified. We are extremely lucky in terms of the calibre of people employed in the public service. It is somewhat unfair to ask whether I do not trust person A, B or C. Of course I trust them – some of them are very good friends of mine and I have enormous respect for them – but I do not know who will be in their positions ten or 20 years from now. It is wrong to put a Secretary General in the position of having to decide what is in the public interest. I would be happier if a Minister made this decision because he or she must come before the Dáil or Seanad and justify the position, whereas a Secretary General is not obliged to do so.

I speak from having been in this position for a number of years. I worked under the British Official Secrets Act, which I treated with a certain degree of levity. Of all the papers that came across my desk, particularly those dealing with issues such as health, which were classified or confidential, the number that were really capable of damaging the national interest was extremely small. Most of them could have been published in the Belfast Telegraph. In fact, one did read most of them in the Belfast Telegraph, but that is another story. It is too easy to throw up a blanket of public interest immunity and it is unfair not only to give that function to Secretaries General but, as Senator McDowell said, to make it into a duty. There is, in the context of the Act, a tendency to change the burden of proof – to change a presumption of release into a presumption of retention. On the narrow point of making a Secretary General the arbiter of the national interest, I have no difficulty at all with the people currently in those positions. However, I feel it is unfair to give them this function.

Martin Mansergh (Fianna Fail)
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I do not know what was Senator O'Meara's experience as a special adviser but when it comes to an issue such as unemployment, there are any number of expert group reports published. The real difficulty is getting to read them all. In the economic and social area, particularly because of the social partnership process, there is no shortage of advisory group reports. To be fair, the Government publishes most of these, unless they relate to consultancy or have a substantial commercial content. However, one must have some regard to simplicity of administration.

Charlie McCreevy (Kildare North, Fianna Fail)
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The provisions in section 13 will achieve a high degree of confidence that records related to ongoing deliberations, particularly those within Departments of State, will be protected. While such deliberations are ongoing, but only to that extent, the Government is satisfied that the public interest favours protection. Once deliberations have concluded, the directives related to those deliberations would fall to be released.

There are other amendments to this section on Secretaries General and certification. The question of whether the deliberative process is ended can be difficult. The Government has decided that more certainty is needed in this area in order that records relating to ongoing deliberations of Departments will not be released into the public domain prematurely in such a way as to undermine the process of Government.

Under the provisions of the Bill, the Secretary General of a Department will decide whether the deliberative process is still underway or has concluded. Where he or she decides the deliberative process is ongoing, the secretary general will issue a certificate and the relevant records will not be released. At the end of the deliberative process, the Secretary General will revoke the certificate and the records will be released. This provision only applies to Government Departments – which comprise 17 public bodies out of a total of 370 covered by the FOI Act.

In issuing certificates, the Secretaries General will need to be fully satisfied that the deliberative process is clearly ongoing. Secretaries General are in charge of complex organisations and we can rely on them to discharge this function in a responsible manner. In addition, the FOI central policy users in my Department will be given detailed, practical advice as to what procedure should be put in place. In the past, in respect of matters not related to the Department of Finance, deciding officers in some Departments occasionally issued documentation when other Departments did not because they regarded the deliberative process as ongoing.

There is nothing sinister in giving the power to a Secretary General to decide when the deliberative process is finally concluded. It can be a matter of interpretation as to when it is concluded, but to suggest that Secretaries General will start issuing certificates willy-nilly, stating that the deliberative process is not concluded and keep it going for years, is ridiculous. Such behaviour would not befit any Secretary General I have ever known. That will not happen. It is reasonable for a Secretary General to decide the matter.

Kathleen O'Meara (Labour)
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What harm has ever been done when information relating to a disagreement between the Minister and his officials has entered the public domain? Why is it necessary to throw the blanket of secrecy around the advice the Minister is receiving?

Charlie McCreevy (Kildare North, Fianna Fail)
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It has done me no harm but, as Senator McDowell has often pointed out, I pride myself on it. The same does not apply to everyone.

Kathleen O'Meara (Labour)
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I agree with Senator Maurice Hayes about the role of Secretaries General and the heavy responsibility being placed on them in this area of the deliberative process. I do not accept, however, that this amending legislation is about simplicity of administration.

The Minister has pointed out that there can be a difference of opinion from one Department or Secretary General to another on when deliberations have concluded. When can we say the deliberative process on unemployment has concluded? It is a policy issue that is constantly brought to Government.

Martin Mansergh (Fianna Fail)
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Did the Senator ever engage in such a practice?

Kathleen O'Meara (Labour)
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I saw it happen on numerous occasions, as I am sure the Senator has. We all know that there is selective leaking. As I have said to former colleagues, all one has to do to make a document desirable to journalists is to mark it "secret". Even if the information is not particularly interesting, they will want it and want to run with it. That is an incorrect exercise of power. One of the effects of freedom of information legislation was to undermine that cloak of secrecy. Unfortunately, this whole atmosphere will probably return once this amending legislation is enacted.

Amendment put and declared lost.

Jim Higgins (Fine Gael)
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I move amendment No. 27:

In page 11, to delete lines 18 to 24, and substitute the following:

"(b) Where an application is made to head for a review under section 14 of a decision to grant a request under section 7, a certificate shall not be issued in respect of the record concerned more than 3 weeks after the date of the receipt of the application by that head.".

There are three remaining amendments in my name. The Opposition has decided to try to dispatch the Bill before the Minister leaves at 4 p.m. The amendment is self-explanatory. I wish to hear the Minister's reply.

Brian Hayes (Fine Gael)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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I do not accept the amendment. Section 13 of the Bill provides that requests under section 7 of the 1997 Act shall be refused if a record has been certified by a Secretary General as being part of an ongoing deliberative process. It is not necessary to go beyond this. It is open to a Secretary General to certify a record up to the point at which a decision is taken on whether to grant an information request. It is not an option to certify a record after an application is received. That is clear.

Amendment, by leave, withdrawn.

Jim Higgins (Fine Gael)
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I move amendment No. 28:

In page 11, to delete lines 25 to 29 and substitute the following:

"(c) A document purporting to be a certificate and to be signed by the Secretary General of the Department of State concerned shall, unless the contrary is proved, be deemed to be a certificate of the Minister of the Government and to be in force and shall be received in any proceedings in a court or under section 14 or 34 without further proof.".

Brian Hayes (Fine Gael)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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I will not accept this amendment because it runs contrary to the thrust of the provision relating to deliberative processes whereby a Secretary General, rather than the Minister, has the function of certifying that a record relates to ongoing deliberations. This amendment is based on the provisions of section 25 of the 1997 Act relating to highly sensitive records in the areas of security, defence, law enforcement and international affairs. However, the two mechanisms are not the same. In section 25 of the 1997 Act the Minister has responsibility for certifying such records, whereas, under the provisions of the Bill relating to deliberative processes, it will be the function of Secretaries General. There is nothing unusual in this. The Public Service Management Act 1997 gave significant new powers to Secretaries General which previously had been those of the Minister. This is an extension of that principle.

A framework for modern government recognises that Secretaries General have a distinctive role in their own right. One can argue that this may give rise to clashes between a Minister and a Secretary General but the same could be said of the Public Service Management Act 1997. I am sure disputes between Secretaries General and Ministers were not unknown before the introduction of that Act either.

Amendment, by leave, withdrawn.

Kathleen O'Meara (Labour)
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I move amendment No. 29:

In page 11, to delete lines 25 to 29.

Derek McDowell (Labour)
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I second the amendment. We are seeking to delete the provision in the Bill which cuts off the line of appeal. Section 13(1A)(c) states that an application for a review or an appeal to the commissioner shall not lie in the event of certification by a Secretary General. This gives a Secretary General untrammelled discretion to determine that a deliberative process is ongoing. The granting of such a significant power to a Secretary General must, at the very least, be subject to review, which is what we seek to achieve by deleting this provision.

The Minister spoke about hypocrisy from the left. I have never criticised him exclusively on the basis of not taking advice from officials. While I have sought to use the advise of officials as a weapon to attack him when he makes bad decisions – decisions with which I disagree – I have never criticised him exclusively on the grounds of not following the advice of officials, nor would I.

Martin Mansergh (Fianna Fail)
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Very briefly, I am not sure that it is appropriate for an outside, independent official to second-guess or second-judge what is the state of a deliberative process.

Jim Higgins (Fine Gael)
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I support the amendment on the basis that the provision in the Bill is contrary to the principles of natural justice. There should be some form of appeal in situations like this.

Charlie McCreevy (Kildare North, Fianna Fail)
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I have already referred to this issue during discussion of a previous amendment. I do not accept this amendment.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment declared lost.

Jim Higgins (Fine Gael)
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I move amendment No. 30:

In page 11, between lines 29 and 30, to insert the following:

(d)a certificate shall specify–

(i)the request under section 7 concerned,

(ii)the deliberative process to which the certificate relates,

(iii)the date on which the certificate is signed by the Secretary General of the Department of State concerned and the date of its expiration, and

(iv)the name of the requester,

and shall be signed by the Secretary General of the Department of State concerned by whom it is issued.

(e)Upon the issue of a certificate, the Secretary General of the Department of State concerned shall cause a copy of the certificate to be furnished forthwith to the requester concerned and to the Minister of the Department of State concerned.

Brian Hayes (Fine Gael)
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I second the amendment.

Martin Mansergh (Fianna Fail)
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Like some of the other amendments, this would make the whole process impossibly bureaucratic. Secretaries General are very busy people and it makes no administrative sense to add to their burdens.

Charlie McCreevy (Kildare North, Fianna Fail)
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I do not accept this amendment as it would be unduly prescriptive. The details of the manner in which decisions are issued, reviewed and revoked are best addressed in the context of guidelines rather than legislation. Guidelines on the provisions of the Freedom of Information Act 1997 are issued from time to time by the freedom of information central policy unit of the Department of Finance. The provisions of the new Bill will receive careful attention in this context.

Amendment put and declared lost.

Amendments Nos. 31 to 33, inclusive not moved.

Kathleen O'Meara (Labour)
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I move amendment No. 34:

In page 12, between lines 28 to 29, to insert the following:

Derek McDowell (Labour)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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While I am not prepared to accept the amendment, I fully understand the concern to ensure that where a threat to a person's life or safety is being invoked to refuse a request and it is the requester's propensity to violence that is at issue, a public body and, where appropriate, the Information Commissioner should take care not to inform the requester that the relevant section is being invoked. I also understand and appreciate the dilemma faced by public bodies in relation to this sensitive and complex issue but there is no simple solution. This issue is receiving careful consideration at official level.

Amendment, by leave, withdrawn.

Kathleen O'Meara (Labour)
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I move amendment No. 35:

In page 12, between lines 35 and 36, to insert the following:

"and

(c) in subsection (2), by the insertion of 'confidential' before 'communication' in both places where that term occurs in paragraph (b), and by the insertion of 'confidential' before 'negotiations' in paragraph (e)."

Derek McDowell (Labour)
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I second the amendment to which I was anxious to move before the Minister had to leave for a European Council meeting. What we are trying to do in this amendment is to row back on the class exemption the Minister is seeking to give certain matters. The 1997 Act effectively provides, in matters of international affairs, matters relating to Northern Ireland, matters relating to security of the State and so on, that if harm would be done to the State's interests in those issues then the head is obliged to refuse. However, the amending Bill creates a class exemption so that effectively everything covered by several Departments of State – the Departments of Justice, Equality and Law Reform, Defence, Foreign Affairs – has a class exemption and is exempt from any disclosure. This is far too broad.

The Minister will be aware that in 1997 when this issue was discussed those Departments were anxious to get an exemption for everything they do. The view was taken that there should still be a requirement on them to show that some harm would be done, that perfunctory information relating to international affairs or Northern Ireland should be open to release in circumstances where it was clear no harm would be done by releasing them. It is regressive that the Minister and the Government have chosen to stamp whole areas of Government activity with the top secret "not to be disclosed under any circumstances" stamp. We are seeking to have that rowed back a little by requiring that only confidential information held on Northern Ireland, the security of the State and so on is protected and not perfunctory everyday information. While I do not expect the Minister to accept the amendment today, it is one of those issues where the sponsoring Departments have not made the case that they should be given the exemption which nobody else enjoys and to which the Minister might reasonably give consideration between now and dealing with it in the other House.

Martin Mansergh (Fianna Fail)
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I wish to deal with the international relations aspect. One could make the case that the release of an individual report from, for example, our ambassador to Rome, or the Italian ambassador here, about a banal conversation would not harm the interests of the State. The problem is whether one's international relations as a whole would be covered in confidence. If a judgment has to be made on each particular case, there would not be consistency and, therefore, there would not be a mutual reliance in diplomatic relations with other countries that particular things said or communicated would not be released. There is a strong case for a class exemption.

Maurice Hayes (Independent)
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I wondered whether in relation to this the Minister would think about the problems of complementarity. I take the point Senator Mansergh made. If it was a Northern Ireland issue which was manifestly not of huge importance, it might be odd if access were refused in Dublin when access had already been granted in Belfast or in London.

Equally, in regard to international relations, it is worth thinking of the effect of Freedom of Information Acts in other jurisdictions. I remember one famous case where a Swedish ombudsman was hugely embarrassed because some thoughtful Swede had made use of the Freedom of Information Act in Portugal to get information there. Would it be a good idea to try to ensure parity of esteem for official secrets in all jurisdictions?

Martin Mansergh (Fianna Fail)
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That was Government information agreements.

Maurice Hayes (Independent)
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Absolutely.

Charlie McCreevy (Kildare North, Fianna Fail)
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I oppose this amendment. International case law supports a high degree of protection for communications and negotiations of a diplomatic nature involving Ministers and the Government. This was recognised by the Oireachtas in the original Act when ministerial and Government communications were not qualified in the manner proposed by this amendment. In drafting the Freedom of Information Act there was an understanding that records relating to defence, security and international relations and Northern Ireland would be provided a high degree of protection. However, difficulties have arisen over the interpretation of what "could reasonably be expected to cause harm". This has led to uncertainty and to the release of information which the Government would have judged had better been held in confidence.

The main difficulty relates to the uncertainty as to what might be released. It is not possible at present to provide any guarantee to interlocutors the information given in confidence can be secure. Without such a guarantee such information will be withheld. This has already been made clear to us by representatives of other states. The Government has to take account, therefore, of the fact that this uncertainty regarding the interpretation will result in a loss of confidence in dealings with the Government and that important and sensitive information may not be made available. Such a situation would have serious consequences for the security and well being of the State. The Government has a responsibility to ensure this does not arise.

Derek McDowell (Labour)
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I do not disagree with what the Minister has said. If information is important to the security of the State, if it is important and sensitive – to use the Minister's words – and its release will do harm, under the Act, as it stands, it will not be released. Both the Minister and Senator Mansergh spoke about clarity. Of course one can get clarity if one simply closes the door. In effect, they say that since nothing will be released there is total clarity in regard to what can be released. We are one step on the road to saying we do not require a Freedom of Information Act. I do not accept that whole swathes of Government activity should be totally immune from inspection. We all accept there is a particular sensitivity in relation to these areas and, therefore, that different provisions should apply to them than apply in other areas.

Amendment put and declared lost.

Kathleen O'Meara (Labour)
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I move amendment No. 36:

In page 13, to delete lines 1 to 16.

Derek McDowell (Labour)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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I oppose Senator O'Meara's amendment, which would permit a reduction in the frequency of reviews conducted jointly by the Taoiseach and such other Ministers as prescribed, currently, the Tánaiste and the Minister for Finance, of the operation of section 25(1) of the principal Act. Only three said directives have been the subject of certification under section 25(1) in the five year period to date since the FOI Act commenced. In view of this the requirement for the Taoiseach or the Minister to consider such requests every six months, or at a minimum, every 12 months, is excessive, particularly when the issues pursuant to section 25(1) have a time limit of two years. Therefore, I cannot accept the amendment.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment declared lost.

Kathleen O'Meara (Labour)
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Amendments Nos. 37 and 38 relate to the same general issue. With the agreement of the House I suggest they be discussed together. They relate to the issue of information obtained in confidence.

An Leas-Chathaoirleach:

Is that agreed? Agreed.

Kathleen O'Meara (Labour)
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I move amendment No. 37:

In page 13, to delete lines 17 to 48.

This amendment again reflects our opinion that the views expressed by the Information Commissioner should be taken on board. There are times when information obtained in confidence should be available in the public domain.

Derek McDowell (Labour)
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I second the amendment. I cannot help but remark that the Minister is giving the Information Commissioner short shrift today. We thought we would give him one more opportunity to accept some of the amendments the commissioner suggested to his Department a few months ago. This amendment strikes me as being technical and one which the Minister may wish to consider seriously.

Charlie McCreevy (Kildare North, Fianna Fail)
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I oppose amendment No. 37. The purpose of section 19 is to clarify that the protection available to information obtained in confidence applies across public bodies. It will also permit a head to refuse to confirm or deny the existence of a record if the record is covered by the exemptions in section 26(1)(a), that is, information obtained in confidence under the principal Act where the mere acknowledgement of the existence or non-existence of the record could undermine or reveal the sensitive information contained in the record. It is essential that such a prudent provision should be included in relation to the text of information obtained in confidence. I will not accept the amendment.

I am not accepting amendment No. 38 which I know has been suggested by the Information Commissioner to prevent agreements being entered into for the purpose of the avoidance of release of information under the Freedom of Information Act. I am not aware of any such instances. I also understand that confidentiality agreements are invoked in the context of the Freedom of Information Act only very rarely.

In framing the original Act, the Oireachtas recognised the importance of protecting, to the maximum extent, the legally binding duties of confidence arising from agreements or enactments not specified in the Third Schedule to the Act. Such agreements and enactments are not subject to an explicit public interest test. I am satisfied that this should continue to be the case. The insertion of an explicit public interest test in the Act could create uncertainty in relation to the protection of information subject to a legally binding duty of confidence. While international case law supports a high degree of protection for a duty of confidence arising from a confidentiality agreement, the courts have tended to apply this protection only to agreements considered to have been validly made. Agreements found to have been entered into for the purpose of the avoidance of release of information under the Freedom of Information Act are not likely to be considered valid. This view has been supported by the advice of the Attorney General and this advice has, in turn, been conveyed to the public bodies by the freedom of information central policy unit. This view could also be stressed in the context of training development on the Act. Therefore, I do not share the concern expressed by the Information Commissioner that public bodies may be using such agreements for the purpose of avoiding the release of information. If they are, such agreements run the risk of being struck down.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment No. 38 not moved.

Kathleen O'Meara (Labour)
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I move amendment No. 39:

In page 14, to delete lines 1 to 36.

Derek McDowell (Labour)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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I am not prepared to accept this amendment. Under the existing provisions of the Freedom of Information Act, a public body must be satisfied as to the identity of a requester prior to releasing information that relates to the requester or to the release of which the requester has consented. It is sensible that similar checks should be made prior to the release of commercially sensitive information. Section 20 will also permit a head to refuse to confirm or deny the existence of a record containing commercially sensitive information where the mere aknowledgement of the existence or non-existence of the record concerned could undermine or reveal the sensitive information contained in the record. This is a reasonable provision. I cannot accept the amendment.

Amendment, by leave, withdrawn.

Kathleen O'Meara (Labour)
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I move amendment No. 40:

In page 14, to delete lines 37 to 46 and in page 15, to delete lines 1 and 2.

Derek McDowell (Labour)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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Section 21 extends the power to refuse to confirm or deny the existence of a record to a record containing personal information where the mere acknowledgement of the existence or non-existence of the record concerned could undermine the exemption or reveal the sensitive personal information contained in the record. The Long Title of the existing Freedom of Information Act accepts the need for strong protection for the privacy of individuals. I do not propose to accept the amendment.

Amendment, by leave, withdrawn.

Kathleen O'Meara (Labour)
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I move amendment No. 41:

In page 15, between lines 2 and 3, to insert "and in subsection (6) by the addition after 'section 7', of ', 17 or 18'.".

This amendment has been suggested by the Information Commissioner and is necessary to ensure that parents of children or people with disabilities, for example, could exercise a right to correct inaccurate information held about them as well as ensuring they have a right to access such information.

Derek McDowell (Labour)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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I am not accepting this amendment in its present form. The issue is being examined by me.

Section 3 of the principal Act contains a provision which allows the Minister for Finance to make regulations for the purpose of giving full effect to the Freedom of Information Act in order that the further legal clarification that appears in this provision may permit regulations to be made or to provide that section 17 or 18 can be invoked by parents, guardians or the next-of-kin of persons unable to direct the exercise of their rights under this section. Such mechanisms operate at present in relation to the right of access to records under section 6 of the Act.

Kathleen O'Meara (Labour)
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I appreciate the Minister's response to the concerns raised by this amendment, if not his last remark. I look forward to further clarification.

Amendment, by leave, withdrawn.

Kathleen O'Meara (Labour)
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I move amendment No. 42:

In page 15, to delete lines 3 to 26.

Brendan Ryan (Labour)
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I second the amendment. I wish to respond to the Minister's remark. I am not sure if my absence caused him delight or my return caused him even greater delight.

I came back for the purpose of saying that his is one of the most disappointing performances I have seen from a Minister in the 22 years since I was elected to this House. It is particularly disappointing to see a Minister of considerable ability and good humour read Civil Service briefs as though he has not an idea of his own when we all know he does.

An Leas-Chathaoirleach:

We are discussing amendment No. 42.

Brendan Ryan (Labour)
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The fact that he was elsewhere last week is close to contempt for this House. It is not the style I expect from him or the Fianna Fáil in which I grew up.

Martin Mansergh (Fianna Fail)
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I take exception to that sort of attack. We have been working very well through the sections of the Bill. We are glad to have the Minister here and he has treated the House with great respect by being here throughout Report Stage.

An Leas-Chathaoirleach:

I also remind the Senator that we are discussing amendment No.42.

Martin Mansergh (Fianna Fail)
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An unprovoked attack was made. Therefore, it can be replied to by a provoked defence.

Mary O'Rourke (Fianna Fail)
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The Senator is entitled to answer.

Charlie McCreevy (Kildare North, Fianna Fail)
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I will not accept this amendment either. This section provides for a period of four weeks from the initiation of third party consultation in burdensome cases. It is believed that in cases involving significant amounts of records or a large number of third parties who need to be consulted under section 29 of the principal Act, two weeks gives an insufficient amount of time for decision makers to be able to properly locate, examine and identify records appropriate to form a consultation, consider the various public interest arguments involved and locate and contact all third parties. A period of four weeks is considered more appropriate for compliance and two weeks not reasonably possible. I am satisfied that this provision is reasonable. Therefore, I do not propose to accept the amendment.

Amendment, by leave, withdrawn.

Kathleen O'Meara (Labour)
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I move amendment No. 43:

In page 15, between lines 26 and 27 to insert "and by the insretion of the following subsection after subsection (6):

'(7) This section shall apply with any necessary modifications to a review under section 14'.".

I ask the Minister to note that this amendment is in line with proposals from the Information Commissioner. It is a logical amendment as section 29 should clearly apply to internal reviews as well as section 7 requests.

Derek McDowell (Labour)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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I admit to being unclear about this amendment which refers, I note with some trepidation, to any necessary modifications. I gather its purpose is to provide for formal third party consultation in accordance with the procedure under section 29 of the principal Act at the internal review stage of making decisions. This issue received considerable attention in the course of the preparation of the Bill. Unfortunately, it did not prove possible to achieve a satisfactory or workable legal mechanism but the issue is still under active consideration.

Amendment, by leave, withdrawn.

Kathleen O'Meara (Labour)
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I move amendment No. 44:

In page 16, between lines 9 and 10 to insert the following:

"(a) in subsection (4) by the insertion after "the appeal" of ", or, in a case where access or partial access is afforded, not later than 4 weeks after access to the records concerned is afforded to the person bringing the appeal".

Derek McDowell (Labour)
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I second the amendment.

Charlie McCreevy (Kildare North, Fianna Fail)
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I will not be accepting this amendment. I understand it relates to an issue raised by the Information Commissioner in his recent report. Further consideration is being given by my Department to the appropriate mechanism for dealing with this issue.

Amendment, by leave, withdrawn.

Kathleen O'Meara (Labour)
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I move amendment No. 45:

In page 16, to delete lines 22 to 35.

Derek McDowell (Labour)
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I second the amendment, which deals with two issues that merit discussion. The first of these is the issue of costing proposals made by political parties. I do not doubt that the Minister had me in mind when drafting this section and wanted to offer some protection. I will politely decline that protection. I am not living in trepidation about anything that may be disclosed in the coming weeks and months regarding information that I or the Labour Party may have requested from his Department prior to last year's election.

The second issue is more substantial. It concerns the practice that has grown among Opposition parties of requiring the disclosure of back-up information relating to parliamentary questions. It is a pity that the Minister is putting this section into the Bill. I have found it interesting and educational to obtain such back-up information. We all know that Departments will only prepare back-up information for questions that are likely to be reached. It is nonetheless useful when a particular question is not reached and the full range of available information can be obtained. This places a good deal more information into the public arena that might otherwise be the case.

I cannot recall an example where information of this sort has been used to the disadvantage or embarrassment of a Minister. It is argued that civil servants would be constrained in what they put on paper in follow-up questions. What the Information Commissioner, and the Secretary General of the Department of the Taoiseach, Mr. Dermot McCarthy, told the Joint Committee on Finance and the Public Service is interesting. Both stated that they believe there had been no degradation of records and that the quality of advice put on paper by civil servants had not diminished as a result of the provisions of the Act.

I appreciate that the Minister is anxious to leave for Brussels.

Martin Mansergh (Fianna Fail)
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Any party in this House can be in Government or in Opposition. There is merit in having communications between political parties and the Department of Finance kept confidential.

On the second point—

Brendan Ryan (Labour)
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Is the Senator asking for it?

Martin Mansergh (Fianna Fail)
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Senator Ryan may not always be in Opposition—

Brendan Ryan (Labour)
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But—

Martin Mansergh (Fianna Fail)
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I am entitled to argue that I think it is a good principle that communications between an Opposition party for costings with the Department of Finance—

Brendan Ryan (Labour)
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The Senator should ask the Opposition first.

Martin Mansergh (Fianna Fail)
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The follow-up to questions only applies to the other House, in which Question Time occurs. The Opposition – any Deputy for that matter – can seek information from a Minister and probe for further information. When that process is complete, an FOI request can be promptly made. There may be a case that back-up replies should be automatically released. However, there is something bizarre, in parliamentary terms, in making an FOI request at the end of Question Time.

On a historical point, before FOI was introduced, during the fall of the Reynolds Government, there was a back-up reply to a question, a note on what the Attorney General did about a particular—

Brian Hayes (Fine Gael)
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Keep repeating the above.

Martin Mansergh (Fianna Fail)
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—that became a matter of great public controversy.

Brian Hayes (Fine Gael)
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Is Senator Mansergh referring to the note that read "If there is a question on this, keep repeating the above"?

Charlie McCreevy (Kildare North, Fianna Fail)
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I do not propose to accept the amendment. The purpose of section 25 is to exclude from the FOI Act records relating to the costing by a public body of proposals by a political party. This is a long-standing agreement between political parties. The section also restricts the principal Act in relation to parliamentary briefing records, including those treated as a brief for parliamentary questions, whether written or oral.

Ministers have direct responsibility to the Oireachtas through the various committees. In order to be properly briefed when appearing before either House, Ministers require a full range of views, expressed in a candid manner, from their officials and advisers on the various complex issues involved. It does not serve the public interest if Ministers do not to receive such advice. The same argument applies to briefing materials used in parliamentary questions. Accordingly, the Bill provides for full protection of such records.

Prior to the most recent general election, my Department pointed out to the leaders of the various political parties that everything concerning party costings would be above aboard. I assure Members – I am sure this also applied to my predecessors – that any advice sought by political parties is not brought to the attention of the Minister for Finance of the day. My Department went to considerable lengths to ensure that everything was done properly. Due to doubts concerning FOI procedure, I prepared a memorandum for the Government encouraging it to make a decision to ensure that FOI would not impinge on the normal procedures that have been in place for a number of years regarding the costings of the political parties.

Kathleen O'Meara (Labour)
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I move amendment No. 46:

In page 16, lines 36 to 50 and in page 17, to delete lines 1 to 6.

This is an important amendment which relates to fees and the charging thereof. The section to which it relates is contentious. I ask the Minister to accept the amendment as it is an important principle of the Act.

Derek McDowell (Labour)
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I second the amendment. It would be useful if the Minister took this opportunity to say what regime he intends to put in place. This is an enabling section, allowing the Minister to make regulations providing for fees. It would facilitate debate here and in the other House if the Minister could let us know what regime he envisages.

Mary O'Rourke (Fianna Fail)
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When I spoke on Second Stage, I brought up the fees issue. This is an enabling section, giving the Minister authority to introduce fees by regulation or some other means but it is too punitive. I ask him, as did the proposer and seconder, Senators O'Meara and McDowell, to look benignly at this section. It will cause hardship and limit the amount of information which may be obtained in various situations. I strongly urge the Minister to indicate what his thoughts are on this matter.

Mary White (Fianna Fail)
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This morning I asked the Minister to waive fees for those who were unemployed, old age pensioners, students doing research, students of journalism – as Dr. Mansergh suggested – and those abused in institutions.

Charlie McCreevy (Kildare North, Fianna Fail)
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We debated this issue earlier. The purpose of the relevant provision is to permit the Minister for Finance to prescribe a fee, in regulations, to be charged by a public body in respect of requests for access to a non-personal record under section 7 of the principal Act. There was also a provision for a fee to be prescribed in respect of an application for internal review under section 14, or in respect of an application for information under section 34. Such a fee will not apply to a request for personal information. I have said this on several occasions and I will not go into it again. It does not apply either in the old Act or this Bill.

In the debate this morning I also indicated my willingness to look at an appropriate reduction in the level of fees for certain categories of requester. Furthermore, when responding to Senator Higgins, I made it clear that every citizen should make some small contribution, however minimal or nominal, for services delivered by the State. That applies in all areas of public life. It leads to an appreciation of the service. Where it is absent, the service is abused. While the fee will be set at a reasonable level, it will depend on the category of the requester. I do not intend to allow large media organisations the same level of fee as Mary Smith from Boyle aged 82 years.

Martin Mansergh (Fianna Fail)
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Quite right.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment declared lost.

Brendan Ryan (Labour)
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This Bill is fundamentally wrong. I have followed the debate in the House or on the monitor in recent weeks and nothing that I have seen on television or read in the newspapers offers evidence of a threat of any kind to the workings of government. I would not wish to be involved in anything that would seriously hinder the efficient work of government. However, the Minister seems to have forgotten that the Government acts on behalf of the people, the phrase is not government of the people but government for the people.

On many occasions the Minister has talked as if this Bill is regulating a local licensed vintners association. He is spending other people's money and is very good at telling us this. Now he tells us that the Bill will make it easier for him and his colleagues in the Government to spend other people's money and to do things on their behalf by not letting them know what is going on. There is no logic to this.

The idea that politicians are afraid to express their opinions is a myth. I do not know whether it is the Catholic Church or what has infected people's thinking but the idea that intelligent dissent in any way weakens an organisation is manifest nonsense. Intelligent dissent revitalises and energises an organisation and embarrassment will arise only from the recording of differing views when those views are not intelligent. Most of the people whom I have met who are connected with government are intelligent. I am certain that all civil servants in senior positions are intelligent. Thus the issue of unintelligent dissent does not arise and the argument for carrying the Bill forward is palpable nonsense.

The argument is really about convenience and control. The convenience is that the Government would rather not have to think about individual matters. More fundamentally, the final say does not rest with it but, in most cases, with the Information Commissioner. This involves the withdrawal of that small but vital degree of independent evaluation of whether the Government is acting in the way that it claims to be acting.

The Bill is a short-term remedy because when the Government loses the next general election, as I am certain it will, one of the first things that will happen is that the provisions of the Bill will be revised.

Martin Mansergh (Fianna Fail)
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We will believe that when we see it.

Mary O'Rourke (Fianna Fail)
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I would not bet on it.

Brendan Ryan (Labour)
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Revised is to understate it. It will be reversed, of which the Government can be certain.

Mary O'Rourke (Fianna Fail)
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Has the Senator got the manifesto?

Brendan Ryan (Labour)
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When it is reversed, everything that the Government is so carefully concealing from public view will become a matter of public record again. My party drove this legislation through an unwilling Oireachtas when the previous partner in government which conceded everything resolutely refused to concede on freedom of information. Deputy Quinn, my former party leader, described in detail in the Dáil the resistance of the current Minister for Foreign Affairs to freedom of information in the negotiations which led to the formation of the 1992 coalition Government.

Martin Mansergh (Fianna Fail)
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It was in the programme for Government.

Mary O'Rourke (Fianna Fail)
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It was.

Brendan Ryan (Labour)
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It was not.

Martin Mansergh (Fianna Fail)
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Yes, it was. I drafted it with Fergus Finlay.

Brendan Ryan (Labour)
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The programme for Government in 1992 contianed a commitment to consider a freedom of information Act.

Charlie McCreevy (Kildare North, Fianna Fail)
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Did the Senator refer to some of the objections of the Fine Gael members of the Government of which Fine Gael was a part? I must look at the files when I get around to it.

Brendan Ryan (Labour)
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Everything is under consideration all the time. There was no commitment in the programme for Government in 1992 to introduce a freedom of information Act because Fianna Fáil refused to do it. The Government has had five years of living with the Act and the first chance it got after the general election it walked away because Fianna Fáil did not want it. That is what the Bill is about. In spite of the line the Government is feeding to journalists and anybody who will listen, the Bill will be reversed when there is a change of Government. Whatever it is trying to conceal will become a matter of public record. That is the reason it is so wrong. If the Freedom of Information Act needed to be revised, this could have been achieved by consensus and agreement, with a proper process of consultation based on a spirit of openness, accountability and transparency, the goddess before whom the Minister does not worship, or so he tells us from time to time.

Charlie McCreevy (Kildare North, Fianna Fail)
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It was I who christened her.

Brendan Ryan (Labour)
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Yes, but I think the Minister is on record as saying that there is excessive devotion to her. I have my god, the Minister has his and perhaps goddesses are nicer.

Brian Hayes (Fine Gael)
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We will not support the proposal that the Bill pass its Final Stage and be sent to the Lower House. Colleagues on both sides have attempted to give it a fair hearing. It is interesting that Senator Mansergh has, under the leash of the Minister, withdrawn many of his constructive comments. The Minister stated unequivocally – he ought to have it as his epitaph – that he was not prepared to accept amendments. We have made no progress on Report Stage.

When the original Bill was presented in 1997, two Governments and five parties had been involved in the deliberations and there was a degree of cross-party consensus as to how to proceed. The problem now is that the same consensus has been lost because the issue has been politicised by the Government's decision to make these severe amendments to the Act. I regret that fact, which is the reason we will continue to oppose the Bill.

It was the former Deputy, Albert Reynolds, who received the note from the Attorney General's office which stated "If questioned on this, keep repeating the above". We know what transpired from that. There is not, unfortunately, the same commitment to such openness and transparency now. Given the problems to which Opposition colleagues have referred in respect of the definition of Government, particularly in respect of the problem with the deliberative process and the lack of consensus on both sides of the House on this issue, we believe the Bill should not go forward to the Lower House.

I remind the Minister that his colleague and friend, Deputy Fleming, along with his other Fianna Fáil colleagues on the committee he chairs, is of the view that substantial amendments need to be made to the Bill. We look forward to these because, as it stands, the Bill does not meet the criteria established in 1997 and that is regretted on all sides of the House.

Martin Mansergh (Fianna Fail)
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We are glad the Minister was present for Report Stage so that we could thrash out all the issues in an effective manner, including those contained in the Information Commissioner's report. I do not see this as a highly political Bill, although it has been politicised. What led to it's introduction was the report of the high level group. The senior civil servants involved in that group were concerned about good Government and not about saving a particular Government from political embarrassment. That is not the issue. What they said should be taken seriously because it is the basis of the Bill. We have had a constructive discussion today and there are five or six issues the Minister has promised to examine.

Joe O'Toole (Independent)
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I will not rehearse the points I made earlier. I look forward to the Bill being returned from the Lower House when whatever changes on which the Minister decides have been made.

In the course of a long and, at times, difficult debate, during a spat with our good colleague, the Minister of State, Deputy Michael Ahern, the impression may have been given that the Minister's advisers were lacking in some way in what they were doing. I wish to state for the record that both Niamh Campbell and Michael Hyland have been superb, on top of their brief and were the essence of efficient and effective civil servants of whom we can be proud. They were extraordinarily good.

Martin Mansergh (Fianna Fail)
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Hear, hear.

Joe O'Toole (Independent)
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I will vote against this repressive legislation. I hope that it will be better when it returns from the Lower House.

Charlie McCreevy (Kildare North, Fianna Fail)
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The Senator was with me on the major issues.

Joe O'Toole (Independent)
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The Minister will like the next part. I listened with great interest to Senator Ryan saying the legislation will be reversed. I have heard this many times before in the House, although not from Senator Ryan. I was a Member of the House when the votes of a few Independent Members increased the number of Ministers of State from 15 to 17 or 17 to 19, whatever the figure was, and Fianna Fáil said it would certainly reverse that.

Brian Hayes (Fine Gael)
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Look what happened.

Joe O'Toole (Independent)
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I offered odds of 17 to 15 against it ever doing that.

I was also Member of the House when the Road Traffic Bill was being debated and Fine Gael was in Opposition. When Fianna Fáil fell over the small fences and the Government changed without an election, Fine Gael, which had been opposed to the Bill, the points system and people having to carry their licence when driving, became a party of Government and brought in the legislation without change.

Martin Mansergh (Fianna Fail)
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Quite right too.

Joe O'Toole (Independent)
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If there is a reversal when a change of Government comes about, it will be the first occasion on which something of that nature will have happened. It will be a great thing to see.

This is poor legislation in the main, although it has good points. It gives a bad impression of politics and feeds the cynics. I hope the Minister gives it some thought and that, when he returns with it to the Seanad, it will be improved so that I will be in a position to support it, which I would like to do. I thank the Minister for giving his time to deal with what has been a superb debate. It is a pity the legislation does not match it.

Kathleen O'Meara (Labour)
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I will vote against the legislation. It is bad law and a bad day for our democracy. I do not accept it has been caused by the report of the high level group. The group reported, but the Government brought forward the legislation without a mandate. There is no mandate for undermining the freedom of information legislation. The Bill is a dilution of important principles enshrined by both Houses of the Oireachtas in 1997. It is unnecessary and wrong and we will continue to oppose it.

Mary White (Fianna Fail)
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As a member of the Joint Committee on Finance and the Public Service, I was delighted to be present to receive clarity on two issues about which I felt strongly, namely, section 6 and the confusion about the terms "relate to" and "contain".

I am pleased that the Minister will attend a meeting of the committee, which, to my knowledge, will take place on 3 and 4 April. When he speaks to the cross-party groups, and especially to the spokesperson for the One in Four group, Colm O'Gorman, and explains to them so that they understand that no person who wishes to access their records will be denied that access, I will be happy. It was a serious issue which was raised by the committee.

I felt strongly that there should be a waiver of fees for the most vulnerable in society and I am happy that this will be the case.

Maurice Hayes (Independent)
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I thank the Minister for attending the debate and for his attention to it. I wish him well in his important discussions in Brussels and have no wish to delay his departure.

I found I was unable to accept the Bill on Second Stage, although I was strongly in favour of parts of it. I strongly favour protecting the integrity of Government discussions. It is a sensible measure to extend the secrecy period from five to ten years. I am still concerned about the width of the definition. It should be possible to obtain a narrower definition of what constitutes Government business. I also thought that there appeared to be a tendency to move the Information Commissioner out of the Act and give him a lesser role than he currently holds.

I am also concerned about the method of consultation. While I have enormous regard and respect for the Secretaries General, they were all looking at the issue through the same lenses. I hope that, as the Bill proceeds in the Lower House, it may be possible to develop more consultation, particularly with the commissioner. When I was in a similar position, people let me see the drafts of Bills with which they were dealing. The commissioner is a statutory officer dealing with these issues and probably knows as much about where the shoe pinches as anyone else.

Mary O'Rourke (Fianna Fail)
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As Leader of the House, I would like to state this Bill has been debated for 27 hours in this House over all Stages. Any Bill that evokes so much debate is an important one and there is no point in saying it was rushed, rammed through or guillotined, as it was not.

Mary White (Fianna Fail)
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Hear, hear.

Brendan Ryan (Labour)
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It was guillotined on Committee Stage.

Mary O'Rourke (Fianna Fail)
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I want to make that quite clear.

Brian Hayes (Fine Gael)
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The Bill is just wrong.

Mary O'Rourke (Fianna Fail)
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We listened to Senator Ryan for a long time.

Brendan Ryan (Labour)
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I will be here for a long time yet.

Mary O'Rourke (Fianna Fail)
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I thank the Minister for Finance.

Brendan Ryan (Labour)
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It is a fact that Committee Stage was guillotined.

Mary O'Rourke (Fianna Fail)
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I listened to the Senator's rant this afternoon and I am entitled to a mini-rant of my own.

Brendan Ryan (Labour)
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I encourage Senators to rant.

Mary O'Rourke (Fianna Fail)
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I thank the Minister for Finance for contributing to the debate in such an attentive manner. It is rare that a senior Minister stays in the House for a full day but the Minister did so today and I appreciate it. I thank the Minister's officials, Niamh, Michael and Ronan, who were present for all 27 hours of the debate. I thank the Minister of State, Deputy Michael Ahern, who, as I said last week, demonstrated courtesy, competence and good humour during the Committee Stage debate. It is important that we conclude our consideration of Bills in a courteous manner – it would be wrong to end with a snarl. I thank the Minister again for his attention and consideration. He has suggested that he will pick up on certain issues raised during the Report Stage debate.

Brendan Ryan (Labour)
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He said he would make some tweaks.

Mary O'Rourke (Fianna Fail)
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He said he would return with an amended version after the Bill had been considered in the Dáil.

Charlie McCreevy (Kildare North, Fianna Fail)
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I thank Senators for their contributions and note the Leader's comment that the Bill has been discussed for 27 hours in this House. If an important Bill is before the Seanad next year at the same time as a certain meeting of Irish people abroad, I will endeavour to arrange a suitable tent in that arena in order that Senators can debate the matter there.

Brian Hayes (Fine Gael)
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The Minister can take us with him.

Kathleen O'Meara (Labour)
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It will be a form of decentralisation.

Question put.

Tá